Monday, July 10, 2017

Symposium Conclusion: SCOTUS OT 2016

Thanks to all our June/early-July guests for their participation in the End-of-Term Symposium.  I hope to make this an annual event, especially as future Terms prove less quiet and undramatic.

All complete posts (in reverse chronological order) can be found here.

Posted by Howard Wasserman on July 10, 2017 at 09:31 AM in 2016-17 End of Term | Permalink | Comments (0)

Wednesday, July 05, 2017

SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction

Cassandra’s post below strikes me as basically right: after a long drought, the Court is paying serious attention to personal jurisdiction. So it’s worth looking at the state of the field.

The personal-jurisdiction debates I’ve seen—on blogs or Facebook posts, in email chains or in briefs and opinions—invoke a wide variety of different arguments. What’s striking, at least to me, is a lack of substantial attention to determining what counts as a good argument—what makes particular claims about personal jurisdiction either true or false. (As noted below, this is part of a broader failing in constitutional scholarship, effectively discussed in Chris Green’s work-in-progress on constitutional truthmakers.) In other words, a great many personal-jurisdiction arguments seem to be largely talking past each other, rather than joining issue on something we can resolve.


For example, many arguments I’ve seen are openly prudential. They argue that upholding (or denying) jurisdiction in such-and-such a case would be a good policy idea, that it would make the legal system better rather than worse, that it would open courthouse doors to sympathetic plaintiffs or lift heavy burdens from sympathetic defendants. But the law does lots of things that are terrible policy ideas, in all sorts of ways: just think of the tax code. So it’s not clear why we should feel confident that any particular good idea would be the right answer on the law—or that any given bad idea is therefore the wrong answer on the law.

Other arguments root themselves in judicial doctrine: personal jurisdiction is present or not because the courts have so held, or because the best reconciliation of their past decisions would so hold, or (to be more Holmesian) because that’s what they’re most likely to hold in the future. On the most extreme account, personal jurisdiction is whatever the courts say it is, so it’s impossible for the courts to be wrong. But many people who deploy these arguments seem to use them to criticize judicial decisions—as if the courts have somehow made mistakes in predicting their own rulings. And even paying due respect to accumulated doctrine, what the courts seem to be saying here is that personal jurisdiction isn’t whatever they say it is: they keep rooting their jurisdictional holdings in other legal rules, with sources external to judicial doctrine alone.

Usually courts root their holdings in the Due Process Clause, ostensibly as generous here as elsewhere (“Turn it over, and turn it over, for all is therein”). But here, too, there’s little effort spent on identifying what counts as a good due-process argument—on what makes claims about jurisdiction-being-consistent-with-due-process true or false. It might involve the defendant’s burden, or the state’s legitimate interests, or fundamental fairness, or a political-theory concept like sovereignty, or history-and-tradition, or some complicated weighted sum of the above. (And over all of these looms the ghost of Pennoyer, which still casts its dark shadow over the U.S. Reports no matter how often academics declare that it was killed off, once and for all, by Insurance Corp. of Ireland or by International Shoe.)

Put another way, the same inattention to truthmakers that we see in con law debates shows up in personal jurisdiction too. This makes some sense, because personal jurisdiction is all about the scope of the powers exercised by various state or federal officials; that’s a topic in small-c constitutional law, whether or not it’s actually resolved by the contents of the U.S. Constitution. But it also explains some of the pathologies of personal-jurisdiction scholarship, because members of different schools will insist loudly on particular priors—the role of interstate federalism, the needs of plaintiffs, the apparently prophetic authority of von Mehren and Trautman—without trying to explain why other people ought to be convinced of them too, on grounds that they might share. There's no escape for civil procedure folks, who often imagine their field to be more rigorous and determinate than that of their con-law colleagues down the hall, from stating and defending their constitutional commitments.

The best way to understand the current confusion is probably to see where it came from. On my reading of the history, the phrase “due process of law” wasn’t supposed to enact substantive standards for jurisdiction—as opposed to a means of enforcing standards supplied by other sources, such as general and international law. Trying to squeeze detailed jurisdictional rules out of those four words is like trying to squeeze blood from a stone. So it shouldn’t surprise us that, after nearly a century of misattributing complex general- and international-law rules to a single phrase in the Constitution, we’d find our underlying jurisdictional principles hard to state or explain—much less to apply to new circumstances, or to ground in more general understandings of the law.

Likewise, it’s not surprising that standards derived from older doctrines of general and international law might prove somewhat awkward, from a policy perspective, in an era with more extensive cross-border activity. That’s why jurisdiction might be an area most properly addressed by statute. Looking to some future decision of the Court to sort everything out for us is a false hope: nine Justices and their clerks don’t have enough time to work out good policy solutions for all of America, and they also lack the legal authority to try. Congress may have the right to make certain kinds of arbitrary compromises, in pursuit of rough justice, that courts in our system don’t. Failing that, the courts will continue to muddle through. I wouldn’t call this pessimism, so much as appropriate caution about what judges and courts can properly achieve.

But it would help, in the meantime, if we who think and write about the subject were better about clarifying our terms, and about trying to argue with rather than against one another. If we think a result is bad policy, we should say that it’s bad policy. If we think that a holding is inconsistent with the deep principles of International Shoe, we should say that instead, and defend why those principles should matter to those who view them with indifference. And if we think that a particular decision is wrong on the law, we should be clear about what we mean by that, and on the sources of the legal rules that we invoke. Doing all this may not lead to consensus or agreement, at least not right away; but at least we’ll be talking about the same thing, which is the first step to understanding it.

Posted by Stephen Sachs on July 5, 2017 at 11:43 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Legal Theory | Permalink | Comments (3)

Sunday, July 02, 2017

SCOTUS Symposium: The Gorsuch Court (Updated)

Eric Segall reflects on the passing of the moment to instantiate his proposal for an evenly partisan eight-person Supreme Court, which died* with the arrival of Justice Gorsuch. Eric writes that many of the post-Term analyses have described it as a quiet Term, marked by consensus and an absence of late-Term drama.

[*] I suppose the dream remains alive if the next retirement were Justice Kennedy or Justice Thomas.

[Update: New reports are that Kennedy has hired only one clerk for OT 2018 and has told candidates he may not hire more because he may retire (retired Justices have one clerk). That vacancy would come four months before the mid-Term elections in which Democrats hope to retake the Senate. Of course, the chances that Senate Republicans unilaterally disarm in that situation are even less than they were prior to the Gorsuch nomination.]

But that narrative is accurate only until the April sitting, when Gorsuch took his seat for arguments. One could feel a palpable change in the Court; it reflected in arguments, with his dominant and sharp questioning, and in his seven separate opinions. All this offers clear indications that he is pushing his way to the front as a voice on the Court, seniority be damned, and that he is less interested in consensus and compromise than other members of the Court. (Some have suggested that this split with the conservatives more interested in compromise--the Chief and Kennedy--explains the odd result and per curiam opinion in the travel ban case).

Eric argues that the change we have witnessed since April reflects another point in favor of his proposal: "[W]hen five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist." Three months in, and we already are seeing that point.

Posted by Howard Wasserman on July 2, 2017 at 12:31 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Saturday, July 01, 2017

SCOTUS OT16 Symposium: The Future of Personal Jurisdiction

Thanks to Howard and the Prawfs crew for having me as a June guestblogger. I wanted to finish out my month by concluding with a few final thoughts future of personal jurisdiction at SCOTUS. 

After a 20-year hiatus where the Court heard no personal jurisdiction cases, the Supreme Court decided six personal jurisdiction opinions in the last six years. In each case, the Court reduced the scope of personal jurisdiction, and thus reduced the number of forum choices available to plaintiffs.  In most of the cases, there was a surprising level of agreement between the judges.

So what's next? The Court hinted in both BNSF and Bristol-Myers that it was considering whether the 5th amendment placed limits on Congress's power to authorize personal jurisdiction, an issue that Stephen noted in his earlier post on BNSF

That issue is squarely presented in the case of Sokolow v. PLO, and on June 26 the Court called for the views of the Acting Solicitor General. It's a great case to keep an eye on for next term; I think there is a good chance it will be granted. The House of Representatives has already filed an amicus brief in the case, which is not something you see every day. 

Other than potentially hearing the 5th amendment question in Sokolow, I would guess that the Court is likely to take a break from personal jurisdiction and will leave some of the thornier “relatedness” questions to the lower courts for awhile. Interestingly, after the Court issued its Bristol-Myers Squibb opinion, the Court denied cert in TV Azteca v. Ruiz, rather than GVR'ing it in light of Bristol-Myers, as I would have expected. The case arose in Texas, and the Texas Supreme Court allowed a Texas plaintiff to bring a libel suit against a Mexican broadcaster and TV anchor who had broadcast from Mexico (though due to inadvertent spillover, people in Texas along the Mexican border could watch the broadcast). The case raised interesting questions about what is required for purposeful availment, how closely the cause of action must relate to the defendant's purposeful contacts, and the scope of the effects test after Calder. It also had great facts, arising from the story of pop star Gloria Trevi, who was accused of grave misdeeds and spent years in jail before being released for lack of evidence. (And Trevi has some great earworms: Habla-bla-bla is impossible not to sing along with, and Psicofonío is a wonderful story-song about a ghostly love affair). The case shared amici with BSM; petitioner's amici argued that in both cases, the courts had overstepped the bounds of jurisdiction, and asked the Court to consider the cases together. Nevertheless, even after reversing BSM, the Court simply denied cert in TV Azteca rather than issuing a GVR for reconsideration in light of BSM.  

Posted by Cassandra Burke Robertson on July 1, 2017 at 09:10 PM in 2016-17 End of Term | Permalink | Comments (2)

Friday, June 30, 2017

Leave the SCOTUS ghostwriters alone (SCOTUS Symposium)

Rumor has it that when a victorious party is trying to convince the Supreme Court not to grant cert. in their case, they will sometimes hire experienced specialists in Supreme Court practice to write the brief in opposition, but then keep their names off the papers, so it looks as if the case remains unexceptional from the respondent's point of view. I've been giving this practice some thought ever since reading Ian's very smart post earlier this month, arguing that this ghostwriting practice is unethical. (Ian and Dan discuss this at length in the subscribers-only "Patreon" episode of their excellent podcast, First Mondays, but Ian's post and the ensuing comment thread contain the core arguments.)

Ian's argument is simple and powerful, which is that the practice is unethical because it is a form of deceptive concealment from the Court of a material fact. As I understand Dan's position, it's that the Court's rules probably do not reach so broadly, but he would be open to seeing them reformed. Similarly, even some of the skeptical comments on Ian's post profess agnosticism on whether it would be good to reform the rules and forbid ghostwriting.

So I thought somebody should lay out the basic case against regulating legal ghostwriting, and it may as well be me.

First, I take it is common ground that this is a question on which the Supreme Court's rules could ultimately come down either way. If the Court's rules required those opposing certiorari to list all counsel involved, or not to have a deceptive motive when deciding which counsel to list, that would be the rule; similarly, if the Court's rules required only the counsel of record to be listed and left everything else up to the parties. We may have a dispute about what the current rules actually do require, but that seems like the least interesting part of the dispute. The more interesting question is whether the rule should be clarified, and if so in which direction.

Second, I think it is important to consider the different possible reasons that a counsel opposing cert. might want to conceal the fact that they've retained top-tier Supreme Court counsel already. Ian writes as if the major reason that this fact is relevant to the Court is that it is an indication that the case will be well-lawyered, a fact which makes the Court somewhat more interested in the case. I think that consideration is overstated -- absent certain positional conflicts, the respondents side of a granted case is likely to be swarmed by good lawyering, or at least likely enough that it would be foolish for the Court to turn down a case because the respondent's brief is bad.

Rather, I think the salient issue is often this: The fact that respondent has already started spending money on top-tier Supreme Court counsel is a sign that respondent itself recognizes the likelihood of the case being granted. They may have various arguments that the case shouldn't be granted, they may even believe them, but they wouldn't spend money hiring new lawyers specializing in Supreme Court practice unless they thought the threat of a cert. grant was high enough to justify the expenditure. Knowing that even respondent thinks a grant is plausible is like an admission against interest that gives the Court more confidence in granting cert.

But once we see the issue this way, we might be more sympathetic to a system that didn't want to force that private information to be disclosed. Or imagine a proposed Supreme Court rule that required the respondent to disclose how many dollars or billable hours were spent on a brief in opposition so that the Court could decide how seriously they should take it. The rule seems unduly intrusive and a little unfair. We don't usually make parties price themselves out of a good litigating position. (We sometimes privilege offers made in settlement negotiations, for instance.) Indeed, the law is full of exclusionary rules that sometimes allow parties to shield information from a decision-maker where we think that shield serves a public purpose.

Third, this brings us to the likelihood that the no-ghostwriting rule would have unfortunate side effects. If respondents have to disclose that they have hired top-tier Supreme Court counsel to write the brief in opposition, and if that disclosure does indeed make the Court more likely to grant the case, then surely on the margins a lot of respondents will stop hiring such counsel at the opposition stage. That means worse briefs, or at least briefs less likely to be directly responsive to the Court's subtle concerns about shallow/stale splits, minor vehicle problems, and the like. That in turn increases the chance of bad grants and hurts the Court, possibly more than the current ghostwriting regime.

Indeed, the brief in opposition may be one of the documents whose quality matters most to the Supreme Court as an institution -- this is the stage at which it is easy to miss a technical vehicle problem, to misunderstand the practical importance of a circuit split, and thus to waste a substantial amount of court and party time if the case is granted and becomes a wild goose chase. Moreover, the sheer volume of cert-stage cases makes it much harder for the Court's independent research to make up for the party's deficiencies, though of course the very smart law clerks in the cert. pool will do their best.

So the Court ought to be falling over backwards to encourage respondents to hire counsel who are knowledgeable about the certiorari process and really understand the criteria. One good way to do that is to not require disclosure, so that parties don't worry that they will have to pay a high price for taking efficient precautions. (To use another evidence analogy, think of the rule making subsequent remedial measures inadmissible to prove negligence or culpability). We can't impose a disclosure regime without recognizing that it will also change behavior -- maybe in ways that we don't want.

Fourth and finally, I worry that attempts to ban the practice of ghostwriting would either be vague or overbroad. For instance, we can imagine a rule requiring all attorneys who worked on a brief to be listed (perhaps beyond a de minimis threshold). But that rule sweeps in the many attorneys who might have other, more sympathetic, reasons for wishing to be excluded. For instance, what about the attorney who is willing to lend aid to an unpopular cause, but wishes to avoid private retaliation or harassment? What about the moonlighter who doesn't want his employer to control his extracurricular activities? Or what about the attorney who wishes to help with a discrete issue in the brief, but doesn't want his name associated with the whole thing because other portions of the brief are beneath his standards? I'm not convinced that the ghostwriting practice is so nefarious that it is worth sweeping these folks in.

One could try to write a narrower rule, one that only applied to non-disclosure whose purpose was to conceal from the Court the certworthiness of the case, but it's hard to imagine that rule being administered in a fair, or even predictable, fashion.

I can see why Ian is troubled by ghostwriting; but it may be better to just let it be.

Posted by Will Baude on June 30, 2017 at 11:54 AM in 2016-17 End of Term | Permalink | Comments (4)

Wednesday, June 28, 2017

SCOTUS OT16 Symposium (Sort Of): Call for Papers on Amending the Constitution

"Everybody talks about the weather, but nobody does anything about it." This term may not have been a blockbuster, but there have been plenty of constitutional cases that people disagreed with—sometimes strongly. One way to change them is to change the Court's membership; another way, and often a better one, is to change the Constitution.

With our organizer's kind permission, here's the call-for-papers for a conference on amending the Constitution, to be held at Duke on February 2, 2018. If you have ideas for how to make it better, send them in!



Duke Journal of Constitutional Law & Public Policy
DJCLPP Annual Spring Symposium: Call for Proposals

The Duke Journal of Constitutional Law and Public Policy (DJCLPP) seeks submissions for a Symposium on amending the Constitution to be held at Duke University School of Law on February 2, 2018.

This year, our Symposium will be organized with the assistance of Professor Stephen Sachs.


The Founders recognized that the Constitution was an imperfect document. Over the past 230 years, however, Article V’s amendment procedure has been used only rarely. The topic for the 2018 Spring Symposium will be An Even More Perfect Union: Proposed Amendments to the Constitution. Each article will propose a different amendment to the Constitution. Articles will offer enactment-ready language for these amendments, defend the need for their adoption, explain the choices made in their drafting, and describe possible routes to enactment.

Invited participants will receive assistance with travel and lodging expenses. Practitioners and others working in the field are welcome to attend.

How to Submit Your Proposal

Proposals should be sent with the subject line “Symposium Proposal” to by July 14, 2017. Please attach a copy of your CV to your proposal. Inquiries via this email address should be directed to DJCLPP ’s Special Projects Editor, Wendy Becker.

Proposals should include the following:

  • A proposed title for your article
  • Draft text for your proposed amendment
  • An abstract or brief description (no more than 500 words) explaining and defending your proposal

 Important Dates

  • July 14, 2017: Deadline to submit proposals
  • July 28, 2017: Proposals selected on or before this date
  • August 4, 2017: Deadline for commitments received from authors
  • January 5, 2018: Draft articles due
  • February 2, 2018: Symposium held at Duke University School of Law
  • Spring 2018: DJCLPP’s Volume 13 published 

For questions, comments, or information about the Journal, please feel free to email the above address.

Thank you, and we look forward to your proposal.


Wendy Becker
Special Projects Editor
Duke Journal of Constitutional Law and Public Policy, Volume 13

Posted by Stephen Sachs on June 28, 2017 at 04:22 PM in 2016-17 End of Term, Constitutional thoughts, Symposium | Permalink | Comments (0)

Tuesday, June 27, 2017

Same-sex marriage after Obergefell (SCOTUS symposium)

Yesterday the Supreme Court took action in two different cases about same-sex marriage. In one, Pavan v. Smith, the court summarily reversed an Arkansas Supreme Court decision about Arkansas's birth-certificate regime, concluding that because "Arkansas law makes birth certificates about more than just genetics" and sometimes allows spouses who are not biological parents to be listed on the birth certificate, it must extend the same recognition to same-sex couples.

Justice Neil M. Gorsuch dissented (joined by Justices Clarence Thomas and Samuel A. Alito Jr.). Interestingly, Gorsuch did not quarrel with the correctness of Obergefell, but rather suggested that the case did not meet the standards for summary reversal, which he said is "usually reserved for cases 'where the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'" (As an aside, I take it that these criteria are supposed to be necessary, but not sufficient, conditions for summary reversal -- the court certainly does not summarily reverse every case that is a clear error in the application of settled law. And as I've written extensively in "The Supreme Court's Shadow Docket," it is actually quite a parlor game to figure out what, in practice, the criteria for summary reversal really are.)

In the other case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court granted certiorari to consider whether the Constitution exempts a "cake artist" from a law requiring him to make cakes for same-sex marriages and opposite-sex marriages alike. I should eat a little crow on this one, because for weeks I have been confidently predicting to my colleagues that the court was not going to grant cert in this case (even though I thought that it should). But after a record-setting 14 times being relisted for conference, the case is now on the merits docket.

The underlying legal issues in both cases are quite different, but I see them as sharing a fundamental theme -- the question of what and how much is supposed to be settled by the Supreme Court's decision in Obergefell. Was the decision supposed to basically end national debates about the status and rights of same-sex couples, or does it still leave space to debate the narrowing or extension of these rights? To be clear, I am not talking about the fundamental holding of Obergefell, which I suspect is already more secure than the holding in Roe v. Wade, but about the broader message to society -- the music, not the words.

Indeed, this theme makes me wonder if the court's actions in these two cases were actually causally related. As noted above, Masterpiece Cakeshop was relisted over and over and over again, which usually means that a case is not going to be granted. Rather, it looks like somebody was writing a dissent from the denial or cert. that changed a mind or two at the final moment. (If there were four votes to grant once Gorsuch joined the court, it could have been granted as early as April, at least eight relists ago.) I wonder -- and this is rank speculation -- if one of the justices became concerned with the possible maximalist implications of the Pavan summary reversal, and changed his vote to "grant" in Masterpiece Cakeshop.

[Cross-posted at the Volokh Conspiracy.]

Posted by Will Baude on June 27, 2017 at 01:03 PM in 2016-17 End of Term | Permalink | Comments (2)

Monday, June 26, 2017

OT 2016 Symposium: On The Travel Ban The Supreme Court Says: Stay Tuned

Today the Supreme Court resolved the government’s petitions for certiorari and motions to stay the lower courts’ injunctions in the travel ban litigation.  The Court granted the government’s petitions for certiorari, so that the case will be heard on the merits in October Term 2017 (specifically, in October). The Court also granted in part the government’s motions to stay the lower courts’ injunctions against the travel ban.  How the Court disposed of the stay requests may affect what the Court has before it when it actually hears the case in October.

First, the easy part:  The Court granted the petitions for certiorari in both the Fourth Circuit and Ninth Circuit cases.  Thus, when the Court reconvenes in October, it will have before it cases that involve a challenge to the 90-day entry ban, the 120-day suspension of the refugee program, and the refugee cap (not really this last part, for reasons I’ll get into).

Now, the hard part:  The Court granted, in part, the government’s motions to stay the lower courts’ injunctions against the entry ban, the suspension of the refugee program, and the refugee cap.  The lower courts had enjoined those provisions entirely—the government could not implement them against anyone, not just the plaintiffs in the cases.  The government had asked the Supreme Court to stay the injunctions in their entirety, so that the government could implement them with no caveats, or, in the alternative, to stay them except with respect to the specific plaintiffs in the cases (Mr. Doe, Dr. Elshikh, and the State of Hawaii). The plaintiffs had asked the Court to deny the stay requests in their entirety.

The Court didn’t do either of those things. Instead it granted the government’s motion “in part.”  It kept the injunctions “in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii,” which it said “means that [the entry ban] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”

What does that mean?  The Court offered this take on what kind of “bona fide relationship” must exist:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

In plain English: The injunction against the entry ban remains in force for persons with a “close familial relationship” to someone in the United States.  The injunction against the entry ban also remains for persons with a “formal, documented, and formed in the ordinary course” relationship with an entity in the United States, such as a University.   The Court lists as examples someone who has been admitted to a university, or accepted an offer of employment.  It’s not clear whether the injunction against the entry ban extends to someone who has applied to a university or a job, but not yet heard about whether they were accepted.  As for individuals with connections to a “nonprofit group”; there, the injunction against the entry ban does not extend to individuals who were contacted by the nonprofit group.

What does all of this mean for October? A few quick thoughts:

(1)Mootness And The Prospect of A Full Merits Review.  As many contributors to this blog, particularly Marty Lederman, have written, the entry ban is written to last for only 90 days.  And the President’s June 14 clarifying memorandum states that the ban lasts for 90 days “after all applicable injunctions are lifted or stayed with respect to that provision.”  Thus, the entry ban and suspension of the refugee program will go into effect now, for 90 days, at least as applied to persons who do not have a bona fide connection with the United States.  And the entry ban will expire 90 days from now, again at least as applied to persons who do not have a bona fide connection with the United States (and the suspension of the refugee program 120 days from now, again as so limited).

It’s not clear exactly what that means for what the Supreme Court will hear come October.  By the time the Court hears the case, the government will have completed its review of existing entry procedures and existing refugee program procedures (“the internal review process”).  Under the terms of the executive order that establishes the entry ban and internal review process, the government is to prepare reports about possible reforms to those procedures within the 90-day window of the entry ban. So when the Court convenes for arguments in October, the government may have reformed entry procedures and the refugee program.

 But at that point, the ban will still be enjoined as it applies to persons with a bona fide connection to the United States. So if the Court were to reverse the Ninth Circuit and Fourth Circuit injunctions after hearing the case on the merits, that could mean a 90-day entry ban (and 120-day suspension of the refugee program) goes into effect for persons who have a bona fide connection to the United States.

That possibility is both odd and disturbing—why allow an entry ban on persons who have connections to the United States to go into effect after the internal review process has been completed, and months after the relevant “determinations” by the Attorney General and Secretary of Homeland Security that a “temporary pause” to allow the government to review its existing procedures was needed? The prospect of allowing that kind of weird, semi entry ban may affect the Court’s review of the merits.

There’s also a chance that the government would take the position (and/or that the Court would read the President’s clarifying memorandum and underlying order to mean) that the ban lasts for only one 90-day period.  That is, because the 9th Circuit and 4th Circuit injunctions have been lifted in some respects, the government or Court could say that the entry ban went into effect today and expired September 27, and that the order does not allow some applications of the entry ban to go into effect later, even if the full scope of the entry ban never went into effect. I think that’s a perfectly reasonable reading of the order and clarifying memorandum.  It also means the case will be moot by the time the court hears it.

(On timing, the suspension of the refugee program lasts for 120 days, through the last week of October; the refugee cap applies only to fiscal year 2017, which ends at the beginning of October.)

(2) Marty casts the stay as huge victory for the plaintiffs, noting that the Court “denied the motions to stay the injunctions not only as applied to aliens with particular relationships to the (U.S. person) plaintiffs in these cases, but also as to other aliens who have analogous relationships with other U.S. persons–‘foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States’–even if those U.S. persons are not plaintiffs in either of the two cases!” 

I think that is a reason to celebrate, but I’m a bit more skeptical of what the Court did.  The scope of the Court’s stay creates some serious administrability hurdles, which complicates the merits review as I explain below.  The limitation the Court creates (a "bona fide" connection to the United States) is also open-ended and susceptible to a ton of interpretation.  The discretion that's built in to that limitation will be exercised by officers on the ground, and the "bona fide connection" could be interpreted narrowly or broadly.  The discretion-laden standard could also be administered in discriminatory ways (whether subconsciously or otherwise).

The Court's limitation on the stay also makes it so there is no link between the 90-day entry ban (as applied to persons who have some connection to the United States) and the internal review process.  The Court's stay disposition also let the ban go into effect in some (perhaps small?) respects, but not others, with nary a word about the merits, even though the case will likely be moot before the Court is able to hear argument on the merits. Thus, the ban will (kind of, sort of, but not really) go into (some) effect, and all the Court will likely be able to do in October is dismiss the case as moot, or vacate the underlying opinions on the ground that the case has since become moot.  It is a little odd to grant a petition and accompanying stay requests in a case, knowing it will become moot before argument is heard.

(3)  Two quick thoughts on the merits.  One, to the extent the Court hears and disposes of the case on the merits next term (which I do not think it will), the government’s position will be considerably weaker by then in two respects.  The Court’s refusal to stay the injunctions as they are applied to persons with bona fide connections to the United States means that the government is obligated to carry out existing entry/vetting procedures and admission into the refugee programs for persons with connections to the United States while simultaneously conducting its internal review of entry procedures and the refugee program.  The government’s argument for the entry ban and suspension of the refugee program, however, has been that that is impossible to do—that it cannot simultaneously review existing entry procedures while carrying out those very procedures. The claim has always been dubious, and the stay indicates the Court doesn’t really buy it either. Moreover, to the extent the Court does hear a challenge to the entry ban on its merits in October, by that point the “internal review” of entry procedures will have been completed. Thus, the government’s stated rationale for the entry ban (to allow it to review existing entry procedures) would not justify an entry ban as applied to persons with connections to the United States going into effect much later.

The second quick thought is from the dissent. Justices Thomas, Alito, and Gorsuch dissented in part from the Court’s disposition of the stay requests. They would have allowed the entry ban and suspension of the refugee cap to go into effect in their entirety. They wrote: “And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.”  That is not how I read the Court’s opinion (I also don’t think it’s how Marty reads it, based on his post).  But that statement does make clear where Justices Thomas, Alito, and Gorsuch stand on the merits—with the government.  (That’s not especially surprising, but still notable.)

One final quick thought:  Both sides will probably take the Court’s action today as something of a victory.  Maybe that’s a good thing, maybe it’s bad.  I think that the Court was right not to allow the ban or refugee suspension to go into effect with respect to persons who have a connection with the United States. That said, I would have preferred if that decision (and the decision to allow some of the ban and suspension to go into effect) had been made with more explanation than the Court’s disposition offered.  (The lack of explanation is understandable given the timing, but still.)  The Court's only explanation is to gesture in the direction of equity and discretion, and essentially just declare that the balance of equities differs for persons who do not have a connection to the United States.  True enough, but does the balance of equities differ enough such that the ban and suspension should have gone into effect for those persons, but not others?  Or, from the other side, why did the Court conclude that the government has not made the requisite showing (of irreparable harm, or that the lower court’s decisions were wrong) to allow the entire ban and suspension to go into effect? If I’m right, we will never really know, since I don’t expect the Court to issue a decision on the merits.

Cross posted from Take Care

Posted by Leah Litman on June 26, 2017 at 07:07 PM in 2016-17 End of Term | Permalink | Comments (0)

The travel ban endgame (SCOTUS Symposium)

Among its other interesting end-of-term work today, the Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve discusses below, the Court stayed the injunctions in part but left them in place "with respect to parties similarly situated" to the plaintiffs. The Court also ordered "a briefing schedule that will permit the cases to be heard during the first session of October Term 2017," noting that "(The Government has not requested that we expedite consideration of the merits to a greater extent.)"

Now here is where I get a little puzzled.

Constant readers will recall a disagreement that Marty Lederman and I had about whether the challenges to the executive order were going to become moot on June 14. On June 14, the President issued a memorandum clarifying (or amending, if necessary) "the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision." This was supposed to stop the mootness problem, and the Court today also ordered the parties to brief "Whether the challenges to Section 2(c) became moot on June 14, 2017."

But is there going to be a new mootness problem? After all, 90 days from today is September 24th, which is before the Court will hear argument and decide the cases. Marty Lederman says yes:

[T]he case will be moot for two ... reasons: For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27. Moreover, as the Court explains, by October the Section 2 “internal review” should be completed (“[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.

What is weird is that the Court doesn't come out and say this exactly. It says:

In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary’s directives. §§2(a)–(b), (d). Given the Government’s representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).

A few questions for now:

1. When does Section 2(c) currently expire? The Court refers to "the 90-day life of §2(c)," without explicitly spelling out when that is. The Presidential memorandum, mentioned above, says that "the effective date of each enjoined provision" is "the date and time at which the referenced injunctions are lifted or stayed with respect to that provision." But what if the injunction is stayed in part, as happened today? Does that trigger the effective date? Or does it trigger it only "in part," so that each provision of the ban will now have two effective dates, one for the plaintiffs and other beneficiaries of the injunction and the other for the rest of the world?

2. Even if Section 2(c) doesn't technically expire, what happens to it once review is complete? I think Marty is right that the travel ban will be much harder to justify at that point. Will the government realize this, and stop enforcing the ban? And if not, isn't the government giving the Court the worst possible vehicle for its claims?

3. Why didn't the Court say more about the endgame it seems to have deliberately set up? It does rather seem as if the effect of today's ruling is to schedule the case for an argument date that it will never reach, and to order the parties to brief a mootness question that will itself be moot, while ignoring the mootness question that will be more relevant in October. So if the Court means "that earlier talk of briefing schedules and additional questions was just for show," this is a funny way to say it.

4. What is the President's next move?

Posted by Will Baude on June 26, 2017 at 07:00 PM in 2016-17 End of Term | Permalink | Comments (3)

SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?

Trinity Lutheran Church v. Comer, decided today, rests on a status-conduct distinction that bears an uncanny resemblance to a similar distinction in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case for which the SCOTUS today granted cert. Could this distinction, which favored the Church in TLC, also favor Masterpiece Bakeshop's free exercise claim?

Being a federalism-inclined law prof when it comes to religious freedom (and most other topics as well), I would deplore such a move. But I could see a reasonable justice's inferring that, if Missouri is constitutionally entitled to discriminate on the basis of religion to avoid being dragooned into supporting the "conduct" of religious education with tax dollars, the Masterpiece Bakeshop ought to be entitled to avoid being conscripted into supporting the "conduct" of same-sex weddings with cakes. Put another way, if facial neutrality of a school voucher program does not suffice to protect a state's taxpayers from the "appearance" of supporting religious education, then then why should the facial neutrality of an anti-discrimination law suffice to save the bakeshop from the analogous appearance of supporting a same-sex wedding ceremony? Calls for "federalism all the way down" invite such analogies between the powers of states and the rights of private organizations, suggesting the devolution of powers enjoyed by the former to the latter in the name of decentralization writ large.

Of course, the SCOTUS might just reiterate that Smith allows all facially neutral laws to be enforced against any employer, at least if the hiring of "ministers" or Yoder-style hybrid rights are not at stake. There is an analogous and equally obvious argument based on Rumsfeld v. FAIR for freedom of speech claims. But suppose that there are five votes to narrow Smith and FAIR. If so, TLC's status-conduct distinction provides coordinates for a surgical strike on facially neutral anti-discrimination laws that could leave standing these laws' prohibition on "status"-based discrimination. To the extent that five justices worry that these sorts of "complicity-based" claims could gut anti-discrimination laws, the status-conduct distinction provides a tempting way to limit the damage but even the score for religious believers.

1. The analogy between status-conduct distinctions in MLC and Masterpiece Bakeshop

First, let's start with the easy analogy. Here's how the status-conduct distinction could migrate from one case (as a delineation of Tenth Amendment powers of the states) to the other (as a delineation of some sort of private free expression/free exercise right). In TLC, the Court distinguished Locke v. Davey by observing that, because Missouri discriminated on the basis of religious "status" rather than "conduct," Missouri had no powerful interest in depriving the church school of ground-up tires for its playground. After all, Missouri had no anti-establishment objection to kids not skinning their knees on pea gravel beyond the fact that they attended a school with a religious "status." By contrast, four votes in the TLC majority (Roberts, Alito, Kennedy, and Kagan) saved a bit of Locke by noting that Missouri might possibly have a stronger interest in withholding money destined to subsidize religious activities (say, religious education or, perhaps, even math education with a spiritual bent). Put another way, despite a constitutional principle ordinarily barring discrimination based on religion, Missouri might be entitled by the Tenth Amendment to draw religion-based distinctions in order to insure that its taxpayers are not coerced into subsidizing religious actions with which those taxpayers disagree.

Compare Masterpiece Bakeshop's claim for a constitutional entitlement to discriminate on the basis of its customers' "actions" in entering into a same-sex marriage rather than their "status" of being gay or lesbian. The bakeshop insists that it is happy to serve same-sex couples or LGBT individuals and, indeed, claims to have done so in the past. The bakeshop simply does not want to support a particular sort of "conduct" -- a wedding ceremony to which the bakeshop objects on religious grounds -- by supplying a cake that allegedly communicates a message of celebration and support.

Could Masterpiece analogize its free exercise interest in avoiding the appearance of supporting particular expressive wedding conduct to Missouri's analogous interest in avoiding the appearance of subsidizing the "conduct" of religious studies? Missouri has (apparently) some sort of powerful interest in not having its taxpayers be dragooned into supporting religious education to which those taxpayers might object. Why does the bakeshop not have an analogous interest in avoiding being dragooned into supporting a wedding message to which it objects?

2. What about precedents like Smith and FAIR v Rumsfeld?

Of course, one could cite the usual precedents (Smith, FAIR, etc.) for the proposition that states have broad authority to enforce religiously neutral or speech-content-neutral laws even when such laws impose "incidental" burdens on religion or speech. Plenty of scholars have applied these sorts of precedents to claims like Masterpiece Bakeshop's to conclude that such claims lack merit. But such reliance on precedent sounds a bit like scholars' rebutting the case against ACA's individual mandate by citing Wickard. For those who want to narrow Smith, the major obstacle is not words on the page of some earlier volume of U.S. Reports but rather the worry that the SCOTUS would face an endless parade of increasingly offensive claims for exemptions from anti-discrimination laws, claims that could either cause major portions of the states' police powers to crumble or place the SCOTUS in the embarrassing position of making purely political and ad hoc distinctions between levels of burdens.

The status-conduct distinction of TLC might conceivably provide a simple way to limit the damage to the states' police powers in a way analogous to the action-inaction distinction's limit on the Court's incursion on the Congress' commerce power in NFIB v. Sebelius. The Court might hold that, by forcing (certain) businesses (sole proprietorships?) to supply "expressive" services supporting "conduct" to which the business owner has religious or even ideological objections, state or local laws violate the First Amendment's free speech or free exercise clause. Cakes, flowers, and photos might sufficiently qualify as "expressive" along the lines of Hurley. By emphasizing that businesses could not use the First Amendment to exempt themselves from laws forbidding discrimination based on racial, religious, or gender "status," a SCOTUS majority might try to cut short a parade of horribles in which anti-discrimination laws generally bite the dust to complicity-based free exercise claims.

3. Why might such a "conduct"-based theory be tempting, if not persuasive?

As I noted above, I would deplore such an incursion into the states' Tenth Amendment powers, and I tend to doubt that a status-conduct distinction would sufficiently minimize the damage. But I could see why some justices might be tempted to limit Smith and FAIR to even the score between religious and secular interests. After all, so long as Lemon stands, those who object to states' providing aid to religious "conduct" can bring an Establishment clause claim insisting that states carve out special exceptions to such laws, even when such laws are facially neutral w.r.t religion. If a taxpayer can be coerced into complicity with religion by a voucher formally extended to all schools, religious and secular, then why cannot a small business be coerced into complicity with non-religion by a facially neutral anti-discrimination law?

The solution, a federalist like myself would say, is to strengthen Smith by eliminating the last vestiges of Lemon. Zelman went a good way towards such elimination. Even Zelman, however, focuses on the actual, practical freedom of parents to make non-religious choices with facially neutral vouchers, while Smith, by contrast, ignores the actual, practical freedom of religious believers to escape generally applicable burdens. Until this asymmetry is remedied, some justices will feel a justifiable temptation to narrow Smith with something like the status-conduct distinction in TLC.

Posted by Rick Hills on June 26, 2017 at 05:07 PM in 2016-17 End of Term | Permalink | Comments (1)

A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments

Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.

1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.

Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.

(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)

2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.     


Posted by Paul Horwitz on June 26, 2017 at 12:07 PM in 2016-17 End of Term, Paul Horwitz | Permalink | Comments (1)

SCOTUS OT16 Symposium: The Travel Ban Injunctions and 23(b)(2)

Today's ruling in the travel ban cases highlights some of the procedural questions that Howard, Sam Bray, and others have raised. The Court narrowed the existing injunctions, but not all the way: it left them in place "with respect to parties similarly situated" to the plaintiffs.

That "similarly situated" phrase echoes the language often used in class actions. But, as Justice Thomas pointed out, these suits have not been certified as class actions: they're on behalf of particular named plaintiffs, though the remedies sought are more typical of a class.

That's why the Court, in framing this "similarly situated" group, was itself forced to work through some of the issues ordinarily handled by class action doctrines:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

(Edit: As Justice Thomas also points out, the defendants will have to work out the same reasoning, "on peril of contempt.")

Here's my question. Suppose that none of these cases had ever been brought. Instead, one of the named parties had brought a class action under 23(b)(2), seeking only injunctive relief, and defined the class as containing "all foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Would such a class be certified?

Class action practice isn't my area of expertise, so I can't really be sure (though my suspicion is no). What I'm more sure of is that the district court would have had to analyze a number of questions at length: Is this class definition proper? Are the named plaintiffs were typical of the class and adequate to represent them? Does the class contain members with interests adverse to the named plaintiffs, or to each other? Would a judgment describing such a class be sufficiently precise under 23(c)(3)(A) to determine its preclusive effect on individual litigants in future cases? And so on.

And it also strikes me that these inquiries have been short-circuited by the plaintiffs' obtaining an injunction that covers more people than are actually parties to the case. Why does Rule 23 impose so many barriers to making absent people into parties, if we can get the same ruling without those people before the court? Why have the judge appoint class counsel under 23(g), if any old lawyer can walk into court and get an order with exactly the same breadth?

Others have made this point before -- and again, class actions aren't my specialty, so I'm happy to be corrected. But it strikes me that this sort of injunction is at the very least in tension with the existing framework of Rule 23. And if they're good ideas nonetheless, then we should recognize that formally: by proposing new amendments to Rule 23, to tell us when the Rule's requirements should and shouldn't be relaxed.

Posted by Stephen Sachs on June 26, 2017 at 11:34 AM in 2016-17 End of Term, Civil Procedure | Permalink | Comments (4)

Religious Status versus Religious Conduct: Free Exercise Federalism survives by a hair in Trinity Lutheran Church

Although I was disappointed by the result in Trinity Lutheran Church v. Comer, I was hardly surprised. After oral argument, it seemed pretty obvious that Missouri was going to lose and that federalism for free exercise doctrine was going to take a hit. The interesting question was whether Locke v. Davey was going to survive or be shaved into oblivion. Locke v. Davey, I am relieved to say, survives by a hair.

The Court distinguished Locke with the good old' status-conduct distinction. "Davey was not denied a scholarship because of who he was," Roberts wrote, but "was denied a scholarship because of what he proposed to do —- use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church." States, therefore, still remain free to carve church schools out of voucher programs that pay for (among other things) religious education. As if to reassure federalists, Roberts dropped a footnote that Justices Thomas and Gorsuch refused to join: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Justices Thomas and Gorsuch, concurring in everything but footnote 3, plainly would overrule Locke and institute simple strict scrutiny across the board for all classifications that single out religious organizations for any disabilities.

What follows is my federalist's plea to Gorsuch and Thomas (or, at least, encouragement to Roberts, Kennedy, Alito, and Kagan) to stick with the federalist course of Locke. You might ideally want strict scrutiny for anti-religious classifications, just to bring the Free Exercise clause into line with the Equal Protection clause's simple framework for suspect classifications. But are you willing to strictly scrutinize all pro-religious accommodations?

There is, of course, no necessary logical connection between tolerance for states' religious accommodations and accommodation for their "no-aid" limits on the financing of religious organizations. The Religion clauses single out religion for special protection: As a logical matter, what is wrong with a little extra protection, above and beyond that afforded by Smith, from Congress and state and local legislatures? Maybe strict scrutiny only runs one way.

There is, however, a practical and emotional connection between the rhetoric of strict scrutiny for burdens on and benefits for religious believers. The more that religious believers demand special carve-outs from regulatory burdens like the contraception mandate or anti-discrimination laws, the more unreasonable it will seem to give them the best of both worlds -- formal neutrality when it comes to benefits but special treatment when it comes to burdens. As Abner Greene noted decades ago, the practical case for special accommodations is practically strengthened by the practical limits that religious believers face in taking advantage of secular programs.

If the religious organizations succeed in their demand for simple formal neutrality with the benefits of government, then the rhetoric of strict scrutiny can hardly fail to touch special religious exemptions from burdens that everyone else has to endure. The intuition that one must take the bitter with the sweet, after all, while little more than an occasional slogan in the doctrine is a powerful mood nonetheless. If the collateral consequence of overruling Locke is that Hobby Lobby-style accommodations are viewed more skeptically, then, from the point of religious believers, MLC will be a Pyrrhic victory and a lousy bargain for religion.

Posted by Rick Hills on June 26, 2017 at 11:13 AM in 2016-17 End of Term | Permalink | Comments (1)

SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court

Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post.  Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter.  All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny.  Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.  

Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion.  Justice Alito’s concurrence included the following paragraph:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong.  It was this paragraph that the Washington Post decided to fact check.  Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”

Oddly, the fact check does not show that this factual claim by Alito is false.  Rather the article claims that it is misleading.  Specifically, the article states:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem, but it is an apples-to-oranges comparison.

As Ed Whelan notes in the National Review, the Washington Post article is quite strange because it refutes a factual claim that Alito didn’t make. The article notes that sex offenders are arrested at the lowest rate for the same crime as compared to people convicted of other crimes.  And it notes that of all previously incarcerated offenders arrested for sex crimes, only 13% were previous sex offenders. But these facts do not refute the narrow factual claims Alito makes in his concurrence.

The real problem that the Post has identified (though expressed poorly) is that Alito’s opinion could be read to endorse an oft-repeated claim that sex offenders pose a unique recidivism risk, making sex offender registries and a host of other post-conviction restrictions justified.  Indeed, in a 2002 opinion, the Supreme Court stated that “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” and referred to the recidivism rate of sex offenders as “frightening and high.”  The Washington Post takes pains to debunk this factual claim, even though it was not included in the Packingham opinion.

I partially share Ed Whelan’s criticism of the Washington Post fact check.  Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate.  And although the Washington Post tells us that there are other facts that appear better calculated to assessing how dangerous sex offenders are, that does not make Alito’s statement inaccurate.

Where Whelan and I part ways is that I nonetheless think this paragraph from Justice Alito’s opinion is misleading, if not false.  The problem with this paragraph is not, as the Washington Post claims, that it cherry picks particular statistics and leaves out other statistics.  It is instead the topic sentence of the paragraph.  The paragraph begins with the claim “Repeat sex offenders pose an especially grave risk to children.” But the facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.

The topic sentence is quite clear—it claims that repeat sex offenders pose a particularly serious risk to children.  But the only fact offered in support of this claim is that previously convicted sex offenders are more likely to be arrested for another sex offense than are individuals who had previously been convicted of a non-sex offense.  But how often prior sex offenders are arrested for subsequent sex offenses tells us next to nothing about the risk that repeat sex offenders pose to children. The data Alito cites on re-arrests tell us nothing about the age of the victims. Nor does information about re-arrests tell us how likely it is that a person who victimizes children was previously convicted of a sex crime. 

But there is data that Alito didn’t cite on both of these questions, and they do not support Justice Alito’s claim. When we look at recidivism data broken down by age of the victim, we do not see a large group of people repeatedly targeting children.  This federal study, for example, shows that although more than 50% of individuals convicted of a sex crime against children had a prior conviction, only 7.3% had a prior conviction for a sex offense against a child. (Look at Table 6.)   This is consistent with recent reporting from Joshua Vaughn of the Carlisle Sentinel.  He reports that in some Pennsylvania counties, 95-100% of all sex crime arrests are for people who are not on the registry, even though police devote as much as 60% of their resources to enforcing registry laws.  These figures flatly contradict Justice Alito’s claim that “Repeat sex offenders pose an especially grave risk to children.”  The serious risk to children appears to be coming from groups other than repeat sex offenders.

Of course, one could argue that Alito limited his claim of “grave risk” to repeat sex offenders.  If we read his claim excluding those previously convicted sex offenders who do not reoffend, then Justice Alito has limited his factual claim in a way that ensures it is accurate—those who have or will reoffend by definition pose a risk of reoffending.  But that seems like a bizarre way to read Justice Alito’s opinion.  The North Carolina law regulated the behavior of all previously convicted sex offenders, not simply those who have or will reoffend.  And if we were supposed to read Justice Alito’s opinion in this tautological way, then I would expect to see this mentioned in the portion of his opinion that discusses whether the law burdens substantially more speech than is necessary” to achieve the government interest.  But that section of his opinion is devoted entirely to the types of websites that the statute covers.

In sum, I think that it is fair to say that Justice Alito makes a misleading, if not false, factual claim in his Packingham concurrence.  But it is not the claim that the Washington Post identifies.

Posted by Carissa Byrne Hessick on June 26, 2017 at 10:10 AM in 2016-17 End of Term, Carissa Byrne Hessick | Permalink | Comments (6)

SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel

As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge.  Petitioner was a lawful permanent resident who had been indicted on drug charges.  His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time.  Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation.  Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.

The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance.  There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different.  Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming.  If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.

In a 6-2 decision, the Supreme Court reversed.  In the majority opinion, Chief Justice Roberts explained that the prejudice here was the Petitioner’s forfeiture of the right to trial by pleading guilty. In his dissent, Justice Thomas (joined by Justice Alito) argued that prejudice requires not only a showing that the defendant would have proceeded to trial, but also that the defendant would have been better off going to trial.  Both the majority and the dissent supported their positions with language from the Court’s previous ineffective assistance cases, none of which clearly settled this issue. 

Although I don’t think that the Court’s previous opinions necessarily settled this question, I do think the majority was nonetheless correct.  First, there are good reasons not to make the prejudice standard any more difficult to satisfy than it already is.  As many others have noted, the prejudice prong of ineffective assistance of counsel is notoriously difficult to satisfy.  And there is a reasonable argument to be made that it unfairly limits Sixth Amendment rights to the innocent. 

Second, the dissent’s prejudice standard would have been impossible for most defendants to satisfy.  A defendant who is deciding whether to plead guilty often does so without access to information that may have helped her assess her likelihood of success at trial.  As a result, a defendant who seeks to challenge the effectiveness of plea bargain counsel is unlikely to have access to information that would indicate that she might have prevailed at trial.

Finally, and most importantly, the majority opinion (at least implicitly) acknowledges the importance of the right to a jury trial.  Our criminal justice system is essentially a system of pleas, rather than a system of trials.  Substantive criminal law and criminal procedure are currently designed to ensure that the vast majority of defendants accept a guilty plea rather than insist upon their right to trial.     Implicit in our system of pleas is the idea that ours has become an administrative criminal justice system, more concerned about processing large numbers of defendants rather than ensuring justice through adversarial testing.  I happen to believe that the process of trial has its own value, not only to defendants, but also to society as a whole.  In saying that the deprivation of the proceeding of a jury trial is itself prejudice, the majority lends some support to that view---a view that used to be considered a bedrock principle in this country.

Posted by Carissa Byrne Hessick on June 26, 2017 at 09:47 AM in 2016-17 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (0)

SCOTUS Symposium: Perry v. MSPB

I wrote an analysis for SCOTUSBlog of Friday's opinion in Perry v. Merit Systems Protection Board. My post-argument prediction that Justice Gorsuch would dissent was correct, although I predicted a solo dissent and he got Justice Thomas to come along. I describe the opinion as Gorsuch announcing his presence with authority on statutory interpretation. This is a minor case, but it portends some sharp divisions in the coming years.

Posted by Howard Wasserman on June 26, 2017 at 07:49 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, June 25, 2017

SCOTUS Symposium: The final week

We enter the final week of June and the final week of the Term. Six cases remain, with Monday the final scheduled opinion day, so expect a flurry. I am most interested in Hernandez v. Mesa, which could produce either further contraction of Bivens or further expansion of qualified immunity. Plus, the Court  has full briefing on the travel ban cases. Plus, rumors of Justice Kennedy's retirement are heating up. Or maybe it is Justice Thomas.

So as we enter the final week and the wrap-up to our End-of-Term Symposium, let's talk about everything that happens on Monday, as well as some broader lessons, conclusions, criticisms, praise, and perspectives from the Term as a whole, and some predictions about what might happen in OT 2017.

Posted by Howard Wasserman on June 25, 2017 at 10:28 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (2)

Friday, June 23, 2017

A Half-Hearted Two Cheers for the Victory of Federalism over Property Rights in Murr v. Wisconsin

Legal scholars like Ilya Somin who share my own libertarian inclinations are mourning the defeat of federally protected property rights in Murr v. Wisconsin. I am not ready to don black. While I agree with Ilya that there should be more robust protection for property rights, I am also pretty sure that the SCOTUS's interpretation of the federal Constitution's Fifth Amendment is the wrong institution to deliver such protection. The problem with relying on the federal judiciary to define "property" is that the federal courts are neither able nor willing to derive a comprehensive system of federal property rights from the dozen words of the Fifth Amendment "just compensation" clause. Instead, SCOTUS's takings doctrine tends gingerly to elevate particular aspects of state property law to constitutionally protected status, using these privileged parts of state law to trump other state regulations by declaring that the latter "takes" property by negating the former.

This enterprise of federalizing discrete parts of state law to safeguard "property" is, I think, a doomed enterprise. I prefer that state courts and state legislatures pull the laboring oar in defining and protecting private property. So, despite my fondness for private property, I offer a couple half-hearted cheers for Murr as the SCOTUS's wisely choosing the better part of valor. More vigorous efforts by the federal courts are likely to backfire either legally or politically, to the detriment of lasting protection of private property.

1. How might SCOTUS's protection for private property legally erode property rights? The problem is that the SCOTUS invites subnational officials to evade takings doctrine by manipulating whatever narrow aspect of state law the federal courts decide to federalize. Take Murr as a case in point. The Murrs owned two contiguous lots that they had received from their parents. Wisconsin's rules protecting the St. Croix River, however, barred the Murrs from building a house on each of the lots, because neither met the State's minimum lot size. Since the two lots together had sufficient combined acreage for a structure, the Murrs could maintain or refurbish their existing house already located on one of the lots.

Does the prohibition on the construction of one structure per lot deprive the Murrs of 100% of the economically beneficial uses of one lot? Or should SCOTUS treat the two lots as a single unit of property for which the Murrs already had a reasonable beneficial use? Chief Justice Roberts in dissent urged a position powerfully argued by Ilya's amicus brief on behalf of nine state governments: Roberts asserted "[s]tate laws defin[ing] the boundaries of distinct units of land ... should, in all but the most exceptional circumstances, determine the parcel at issue" for the purposes of federal takings doctrine. As I have noted in an earlier post, however, such a stance just invites states to slow-walk all efforts to subdivide parcels. If the federally protected aspect of state law is the lot line, then one can predict that counties will be loathe to allow farmers to split their farms up, multiplying lots lines and, thus federally protected property.

Ilya responded that such a worry is merely theoretical, because "[m]ost subdivisions are done for purpose of transferring part of the previously unified lot to a new owner," and such transfers "would increase the risk of takings liability even if the state wins Murr (which deals with situations where contiguous lots are owned by the same person or organization)." Ilya's response, however, overlooks how subdivision plats are really approved nowadays. Typically, a farmer or other large landowner sells an option to a developer to buy the land for subdivision and development contingent on approvals for subdivision from the local government (typically the county). At the time that the subdivision plat is submitted, there are usually no buyers of the lots to be split: Transfer of those individual lots is usually anticipated far down the road, once roads are graded, utility lines dug, and a few model homes constructed. By announcing a doctrine that subdivision freezes into place federally protected property rights, the SCOTUS would simply give counties more incentives to demand larger up-front payments from the developer -- a bigger letter of credit, a more ironclad assurance that the necessary exactions would be forthcoming.

In short, Ilya's position in Murr would force developers and farmers to pay for perhaps unwanted "takings insurance," guaranteeing them buildable lots if the split is approved -- but only at the price demanded by the authority approving the split. If you think that it is a bad idea to force citizens to buy health insurance, then why would you force them to buy takings insurance? (Okay, that was admittedly a cheap shot). More seriously, why would anyone think that a federal takings doctrine so easy for local governments to evade would do anything but add to the legal transaction costs of transferring title, by making local governments more wary of routinely approving lot splits?

2. How might SCOTUS's expansion of takings doctrine politically endanger property rights (or SCOTUS)? The problem with a vigorous federal takings doctrine goes deeper than the technicalities of Lucas' total takings rule and lot splits. More fundamentally, the SCOTUS just does not have the political clout to face down landowners -- and ultimately any federally protected theory of property rights will face opposition from precisely this potent source.

The gravest attack on property rights is excessively stringent zoning that is now strangling our nation's housing supply. Landowners -- especially homeowners -- are, however, devoted to the preservation of zoning. For them, zoning is not the contradiction but rather the instantiation of property values. Such "homevoters" (Bill Fischel's telling phrase and concept) vigorously defend such zoning rules through local politics that unite urban liberal Democratic "brownstoners" in Brooklyn with suburban Republicans in Westchester County. No politician will dare to tackle this interest group, and SCOTUS would be fools to think that they could significantly unravel the regulations with which these voters have swaddled their biggest investment. The SCOTUS that tried to tackle zoning would, I predict, face a backlash that would make the ire at Roe v. Wade look like a minor partisan snit. Environmentalists, historic preservationists, suburbanites invested in their exclusionary zoning, local officials invested in their most important governmental function, would all rise as one and smite the Senate that allowed any justices to be confirmed who would encroach on their sacred "zoning fee simple absolute."

The SCOTUS is well-aware that that the sacred cow of zoning is immune from any knife that the federal judiciary is capable of wielding: They would beat a hasty retreat faster than you can say Euclid. Indeed, there is no need to retreat: Even the Rehnquist Court never advanced into such a perilous quagmire: They essentially withdrew the federal courts from the business of takings doctrine in San Remo Hotel.

3. So where should we look for property rights protection? Mostly state law, I believe. the Oregon legislature is considering a bill to cut back on zoning. The California legislature has enacted a raft of laws like the Density Bonus Law and Housing Accountability Act that place serious limits on local power to destroy property rights. Only the state legislatures and state courts have the electoral legitimacy, experience, and fine-grained tools necessary to contest the hegemony of zoning. Such a contest is a grueling slog through the minutiae of how land-use regulation actually operates, in thousands of tedious administrative hearings and millions of pages of environmental impact statements and the like.

The pretense that the federal courts will ever provide a serious counterweight to zoning is, I think, a fantasy fostered by the sheer academic fun of takings doctrine and the theatrical drama of Supreme Court set pieces like Lucas and Murr. Like the solemn drama of a regal coronation in England, however, such theatrics are not really where the practical power lies. Cases like Murr merely ratify what we already really know: When it comes to property in land, the states are inevitably in charge, and it is there that we libertarians ought to direct our energies.

Posted by Rick Hills on June 23, 2017 at 05:13 PM in 2016-17 End of Term | Permalink | Comments (3)

Thursday, June 22, 2017

The Nine Lives of Bivens (SCOTUS Symposium)

In Ziglar v. Abbasi, the Court ruled against plaintiffs seeking relief from allegedly unconstitutional discrimination and abuse in the wake of 9/11. Perhaps the largest flashpoint in the case concerned the Court’s treatment of Bivens, a landmark ruling from 1971 that created a cause of action for damages for Fourth Amendment violations by federal officers.

Over the pasts few days, critics of Abbasi have argued that Bivens is now “all but overruled” and “all-but limited … to its facts.” But similar claims have been made before—and will likely be made yet again. If Bivens has nine lives, it seems to have two or three left to go.

By way of background, Abbasi declined to recognize a cause of action for damages against federal officials in the context of the plaintiffs’ case. However, Abbasi clearly and emphatically asserted that Bivens remains “settled law." To wit:

[I]t must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.

So Bivens abides as a “fixed principle” in the “common and recurrent sphere of law enforcement.”

But consider the following tweet from a characteristically insightful thread by Steve Vladeck:

Unless Hernández walks some of this back (it probably would've come down today if so), #SCOTUS has all-but limited Bivens to its facts.

If Abbasi had really “limited Bivens to its facts,” then the outcome in Hernandez would be foreordained. Yet the tweet acknowledges that Hernandez might yet give Bivens new life.

Writing at Take Care, Mike Dorf is to similar effect in a learned post that substantially concurs with Steve’s analysis:

The Abbasi decision now all but overrules Bivens. Although the Court preserves Bivens "in the search-and-seizure context in which it arose," Justice Kennedy's decision for a 4-2 Court (minus Justices Sotomayor, Kagan, and Gorsuch) severely cuts back on Bivens in just about every other context.

But if Abbasi “all but overrules Bivens,” can it really be true that Abbasi also “preserves Bivens” for a large category of cases?

Or consider this: if the Court eventually rules against a Bivens remedy in the search-and-seizure context, would Bivens have been “all but overruled” or “all-but limited … to its facts” for a second time?

Or perhaps for the third time. Back in 2010, Steve wrote an article in which he noted (and dissented from) “the consensus view … that Iqbal is an unremarkable addition to a long line of Supreme Court decisions over the past quarter-century in which the Court has effectively limited Bivens to its facts—just another nail in a coffin long-since sealed."

And before that, in 2008, Natalie Banta’s student note argued that “Bivens has effectively been limited to its facts and after Wilkie is very close to a complete demise."

And before that, the Court declared in Malesko (2001): “Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants.” Wasn’t that just as much a precedential foreboding of Bivens’s impending demise?

Yet Bivens lives on, even if only to be killed off again. Similar stories could be told about Miranda, Flast, and other cases.

What can we learn from this zombie tale? Here are three quick points.

First, saying that Bivens has been “narrowed” lacks the rhetorical force of saying that it’s been “all but overruled” or “limited to its facts.” But the vocabulary of narrowing has the advantage of being more accurate. Abbasi narrowed Bivens by adopting a reading of that case that is narrower than the best available reading. And a precedent that is narrowed (as opposed to overruled) is still good law and has a chance of growing yet again. (Think of Lemon, which Justice Scalia famously compared with a "ghoul" that is "repeatedly killed and buried," only to emerge once more.) Further, we should assess narrowing differently from overruling. To evaluate Abbasi, we need to know how much the relevant precedent has been narrowed, how much value the precedent has lost, and whether the narrowing was supported by legitimate reasons. The stare decisis factors for overruling shouldn't apply.

Second, in arguing that the Court has effectively overruled Bivens or limited it to its facts, commentators implicitly privilege Bivens over the more recent cases cutting back on it. But all these cases are precedential, and the Court’s precedential duties accordingly point in different directions. In fact, the long line of cases narrowing Bivens may in themselves support a precedential argument in favor of further limitations on Bivens.

Justice Kennedy’s majority opinion in Abbasi underscores that point. For example, the Court quotes Iqbal in reasoning that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” And the Court includes a long string cite of controversial cases that declined to find Bivens applicable. Perhaps Abbasi alters Bivens in a qualitatively greater way than prior decisions; but even if so, that added step may itself find precedential support in the foundations laid in cases like Malesko, Wilkie, and Iqbal.

Justice Breyer’s excellent dissent in Abbasi recognizes this aspect of the Court’s reasoning and responds as follows:

Thus the Court, as the majority opinion says, repeatedly wrote that it was not “expanding” the scope of the Bivens remedy. But the Court nowhere suggested that it would narrow Bivens’ existing scope.

However, the Court often says that it is “not extending” when it is narrowing. (That is a statement of fact, not an excuse.) Abbasi itself supplies an example, as the Court yet again says it’s simply choosing not to extend. But, as the Abbasi dissent recognizes, narrowing is the order of the day.

Finally, the regularly renewed lamentations over Bivens’s demise raise the question of whether it is “easier” or less costly for the Court to narrow a disfavored precedent gradually, as opposed to overruling it immediately. There may not be one general answer to this question. When overruling occurs in a salient case, as in Citizens United, it can garner enormous critical attention. But overruling often occurs more discreetly. And narrowing over time allows for waves of criticism. The Court may be able to kill a case by a thousand cuts, but it too could end up scarred. Abbasi illustrates this possibility, as the Court controversially narrowed in a high-profile case.

Of course, the fact that Bivens has been narrowed over time doesn’t mean that it will ever be overruled, effectively overruled, or limited to its facts. Perhaps the Court meant it when it said that there are “powerful reasons to retain” Bivens, if only within a certain “sphere.” We should hardly be surprised if a case with nine lives outlives us all.  

Posted by Richard M. Re on June 22, 2017 at 08:30 AM in 2016-17 End of Term | Permalink | Comments (6)

Wednesday, June 21, 2017

SCOTUS Symposium: A Pair of Posts on Abbasi's Flawed Historical, Analytical, and Theoretical Foundations

I'm embarrassingly late to the non-stop party that is the Prawfs end-of-Term symposium, but thought I should at least flag here a pair of posts I've written elsewhere about Monday's decision in Ziglar v. Abbasi, why I think it's the clubhouse leader for most important ruling of the Term, and why that—and it—should bother all of us (a lot).

On Monday, over at Just Security, I wrote a post about "the four key analytical moves Justice Kennedy makes in laying the groundwork for the holding that courts shouldn’t recognize such 'Bivens' claims here (or in most other contexts), and break down why each of the moves is independently problematic." In a nutshell, the Abbasi opinion (1) ignored the rich history of common-law damages remedies against federal officers; (2) refused to grapple with the (potentially constitutional) implications of the Westfall Act, which has been read to foreclose previously available state-law remedies for federal constitutional violations; (3) accepted the deeply problematic analogy to the role of courts in implying statutory causes of action; and (4) held out habeas petitions as a meaningful alternative remedy for the constitutional violations alleged by the plaintiffs.

Today, I have a post up at Lawfare that more directly confronts the normative claim at the heart of Justice Kennedy's opinion—that judge-made remedies for constitutional violations, especially in national security cases, represent an undue intrusion into the prerogatives of the political branches (and more so than claims for prospective relief). As today's post suggests, 

[T]here are three different defects in his normative case against Bivens: First, it rests on a view of the intrusive effect of Bivens that is not just wholly unsubstantiated but also internally inconsistent as a logical matter. Second, it incorporates into Bivens concerns about undue intrusion that other doctrines already account for in more nuanced, sophisticated ways. Third, and most importantly, it assumes that damages actions represent a greater intrusion into the function of the political branches in general (and in national security cases, specifically) than does prospective relief (like injunctions, habeas, etc). That’s a theory of the separation of powers that, frankly, makes no sense. Certainly one can reasonably be opposed to an aggressive judicial role in national security cases in general, or in cases seeking prospective relief, specifically. But the idea that judicial recognition of an after-the-fact damages suit represents a greater threat to the separation of powers than judicial imposition of an injunction against ongoing national security policies (ranging from the 1973 bombing of Cambodia to military detention at Guantánamo to the travel ban) is, for lack of a better word, nuts.

Anyway, since neither Just Security nor Lawfare allows comments (directly, at least), I thought I'd flag these contributions here in case they provoke further discussion...

Posted by Steve Vladeck on June 21, 2017 at 04:32 PM in 2016-17 End of Term, Constitutional thoughts, Steve Vladeck | Permalink | Comments (4)

Tuesday, June 20, 2017

SCOTUS: Partisan gerrymandering case from Wisconsin

Two cheers for the Court's decision to hear this closely watched case.

First in Davis v. Bandemer in the 80's, and later in Vieth, the Court has flirted significantly with a big ruling limiting the power of state legislatures to engage in reapportionment for what is plainly partisan political motivations.  The caution has stemmed, broadly speaking, from two concerns:   First, the meta-question of whether a political motivation, one which generates results that lock in partisan results is inconsistent with our constitutional democracy, and in a way that can be located in a responsible interpretation of the Constitution's text and judicial precedent; second, the question which loomed so large for the Court before Baker v. Carr and articulated so memorably by Justice Harlan's remark in Colegrove about this "political thicket," and that is the matter of remedy and redress.

A slender majority of the Court, and surely a much larger majority of academic commentators, view the first question as answerable in the affirmative.  The line of cases from Baker and Reynolds summarizes the basic theoretical underpinnings of this reasoning.  It is tempting to see this, sharpened eloquently by influential scholars such as Rick Pildes, Sam Issacharoff, Pam Karlan, and so many others, as a salutary antidote to partisan lock-ups and what I would call, clumsily, bad partisanship and deleterious polarization.  Yet, what seems to drive the Court's cautious foray into this thicket is not a comprehensive, or even coherent, view of partisanship and democracy, but a borrowing from the Court's Voting Rights Act jurisprudence and, in particular, a sharp focus on dilution and the fundamental right to have one's vote adequately influential.

Into this conceptual lacuna comes the shrewd and timely contribution of Nick Stephanopoulos and Eric McGhee in the development of the "efficiency gap" measure for unacceptable partisanship, the details of which are nicely summarized by the Brennan Center here.  

What remains incomplete, however, despite a generation's worth of important scholarship on this complex subject is the big picture of how partisan gerrymandering's vote dilution is the same threat to equal protection as articulated in the "one-person-one-vote" cases.  We know well from the "efficiency gap" argument that there is dilution and it can be measured effectively; but we need to know why this kind of dilution is objectionable on a rationale which sounds in equal protection, and as articulated by Justice Brennan and the Warren Court in the heyday of this jurisprudence.  True, the analogy between dilution here and in the VRA context is a strong one; yet, the VRA has a different history.  Racial spoils and Jim Crow undergirds its history; political spoils and strategic partisanship has a different history, and it takes a stretch to connect the two by anything other than an analogy.

And, of course, the matter of the remedy looms especially large -- indeed, perhaps too large to sway Justice Kennedy in the end.  We knew what to do in Reynolds; and the VRA gives us a template for how to think about remedying unacceptable discrimination.  But can we truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics?  Can this coexist with our system of federalism in which the fundamental choices are made locally and by elected politicians who are, for better or worse, ambassadors of partisan advantage and party leadership?

We will be watching closely for sure! 



Posted by Dan Rodriguez on June 20, 2017 at 11:22 AM in 2016-17 End of Term, Constitutional thoughts, Daniel Rodriguez | Permalink | Comments (8)

Monday, June 19, 2017

SCOTUS Symposium: Happy talk and revolutions of historic proportions

I am going to discuss the two free speech cases--Matai v. Tam and Packingham v. North Carolina--together as unanimous, broad reaffirmations of a libertarian, highly protective model of free expression.

A couple of interesting points:

1) Justice Kennedy and Justice Alito in some kind of tit-for-tat? Alito wrote the Opinion for the Court in Tam, but Justice Kennedy did not join pieces addressing government subsidies, government programs, or commercial speech. He wanted to hang his analysis on viewpoint discrimination, which rendered unnecessary discussion of those other issues; even commercial speech cannot be restricted on viewpoint-discriminatory bases.  Kennedy at least tried to praise the pieces of the Alito opinion that he joined, especially on viewpoint. Meanwhile, Justice Kennedy wrote the Opinion for the Court in Packingham, but Justice Alito did not join the opinion (he concurred only in the judgment) because of its "undisciplined dicta," "loose rhetoric," and failure to "heed its own admonition of caution" regarding the internet.

It is not surprising that Kennedy would take a broader approach to free speech than Alito or that Alito might bristle at Kennedy's speech-protective rhetoric. What is somewhat surprising is how the rest of the Court divided. In Tam, Ginsburg, Sotomayor, and Kagan went with Kennedy; in Packingham, the Chief and Thomas went with Alito.

This brought to mind one similarly divided free-speech case in United States v. Alvarez; there, the Chief, Ginsburg, and Sotomayor followed Kennedy's  broader and looser approach, while Kagan (with Breyer) followed a narrower course (Alito and Thomas dissented). So we see in these cases a slight shift in who is willing to pursue the broadest free-speech approach. I am not trying to overread anything, because every case is different. But these were interesting lineups.

2) I want to highlight Rick's argument (an idea I have seen reflected elsewhere) that the paeans to viewpoint neutrality in both Tam opinions signal where the Court would come out on public controversies over offensive or outrageous speech--racist speech on campus, hate speech, severed heads, productions of Julius Caesar, etc. And it seems everyone on the Court is on a similar page as to offensiveness and viewpoint discrimination.

3) On that point, note how broadly both opinions in Tam define viewpoint discrimination. It is not enough to allow "both sides to speak;" the First Amendment requires that both sides be allowed to utter the full range of views in the manner of their choosing. As Justice Kennedy put it, "a subject that is first defined by content and then regulated or censored by mandating only on sort of comment is not viewpoint neutral;"[m]andating positivity"--allowing every side to say nice things about everything but not say mean things about everything--still is viewpoint discriminatory. In other words, it is viewpoint discrimination to prohibit critical speech, even if both Republicans and Democrats are prohibited from criticizing. Or as Justice Alito explained, the challenged provision "is not an anti-discrimination clause; it is a happy-talk clause." And mandating happy talk is viewpoint discriminatory.

4) Justice Kennedy's Packingham opinion is about the communicative "revolution of historic proportions" that is the internet--the "forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow." Justice Alito's Packingham opinion is about the "dark internet" in which bad people are lurking on web sites.

5) Part II of the Alito opinion in Tam addressed and rejected Tam's argument that the disparagement clause did not apply to disparagement of groups of persons as opposed to individual real or juridical persons. It considered this despite Tam not raising it below and despite the Court declining to grant cert on it when presented in the opposition to cert. The Court justified this on avoidance grounds. But does that mean that even an unpreserved statutory argument is always subsumed in a grant on a constitutional issue? Justice Thomas did not join this piece of the opinion.

Posted by Howard Wasserman on June 19, 2017 at 07:59 PM in 2016-17 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

SCOTUS OT16 Symposium: Bristol-Meyers Squibb and More Work for Lawyers

Following up on Howard’s and Stephen’s posts about Bristol-Myers, I think the best thing that can be said about the case is that it creates work for more lawyers in more cases.

It’s not so great, on the other hand, for plaintiffs--or for judicial efficiency.  The Court tells us that class actions plaintiffs will have two options. They can sue in the defendant’s home state--which may work well in a single-defendant case, but will be problematic in a multi-defendant case and especially problematic when the defendant is a foreign corporation. Or the plaintiffs residing in a single state can file a class action where the plaintiffs live and/or suffered harm. The economics of class actions might make this difficult for plaintiffs. I would think that it would also make it difficult for defendants, who would presumably not want to face 50 separate class actions. However, at least the bloggers at the Drug and Device Law Blog don’t seem to be too worried about that, but instead conclude that the case made for “[a] very good day for the right side of the “v.” – and not very good for those on the wrong side.”

MDL practice may also provide another possibility for consolidating litigation nationwide. But the Court left open the same question that Stephen Sachs pointed out was not decided in BNSF—“whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.” I suspect this question will be the topic of a great deal of litigation in the near future.

This case also didn't raise the question of whether states can require that companies registering to do business consent to jurisdiction in their courts. I think this question will also continue to be litigated, and I think it depends on what is most important to the Court. Is it the effect (narrowing jurisdiction)? If so, then perhaps such a requirement would be struck down.  But the Court also gave significant lip service to the concepts of state sovereignty and respect for territorial boundaries—which might suggest that, as a matter of federalism, states should be allowed to be make such a requirement—at least in those cases where there is a clear state interest in hearing the case.

As Professor Rocky Rhodes and I discuss in a recent piece, the Court’s focus on a narrow conception of jurisdiction makes the problem of jurisdictional discovery much more salient. Unfortunately, however, the recent amendments to the discovery rules make the jurisdictional discovery process harder. But the more the Court narrows the grounds for jurisdiction, the more important such jurisdictional discovery will become.

And finally, a note in response to Stephen’s point about “what's ‘fair’ or ‘unfair’ about jurisdiction is whether a particular government is fairly empowered to decide the case.” I would offer a friendly amendment to substitute “claim” for “case.” I think it matters in this context.  I would have preferred to think in terms of “cases,” which I think gets to the question about the court’s power of the defendant in general—can this court hale this defendant before it?  But the Court’s opinion today offered a narrowed conception, focusing on individual claims rather than cases. Can this court hale this defendant before it as to this particular claim by this particular plaintiff? This narrower view seems to move away from what I see as the importance of personal jurisdiction (haling an unwilling defendant into court at all), and moves toward something that looks more like venue—except with a constitutional dimension. I suspect that this means the Court will not be particularly sympathetic to the idea of pendent personal jurisdiction. But the question, like so many others left open, will still need to be litigated.

Posted by Cassandra Burke Robertson on June 19, 2017 at 04:54 PM in 2016-17 End of Term | Permalink | Comments (1)

"In an appropriate case, we should reconsider our qualified immunity jurisprudence." (SCOTUS Symposium)

Today was a busy and newsworthy day in constitutional law at the Supreme Court, and one reason was the Court's constitutional remedies decision in Ziglar v. Abbasi. In Ziglar, a short-handed, six-Justice Court blocked a set of constitutional claims brought against government officials arising out of harsh detentions in the wake of 9/11. The Court's ruling implicated several different procedural doctrines, and may prove to be the ultimate cap on almost all "Bivens" suits for damages against federal officials (as Steve Vladeck discusses in this thread and as Howard posted here earlier).

But along the way, the decision provoked some promising skepticism from Justice Thomas about the doctrine of qualified immunity (A doctrine which protects government officials from liability for unconstitutional conduct, and which I've previously posted about here and here). Here is Justice Thomas, writing separately:

As for respondents’ claims under 42 U.S.C. § 1985(3), I join Part V of the Court’s opinion, which holds that respondents are entitled to qualified immunity. The Court correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence.
The Civil Rights Act of 1871, of which § 1985(3) and the more frequently litigated § 1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§ 1, 2, . 13. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U.S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) ; accord, Briscoe v. LaHue, 460 U.S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U.S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U.S. 914, 920 (1984).
In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole, 504 U. S. 158, 170 (1992) (Kennedy, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under §1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove, 341 U.S. 367–376 (1951) (legislators); Pierson v. Ray, 386 U.S. 547–555 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” Imbler, supra, at 430; Burns v. Reed, 500 U.S. 478–492 (1991); but see Kalina v. Fletcher, 522 U. S. 118–134 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor’s advice to police officers, Burns, supra, at 493.
In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U.S., at 555. Rather, we concluded that police officers could assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law. Id., at 557.
In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J.,joined by Thomas, J., dissenting). In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U.S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. ___, ___–___ (2015) ( per curiam) (slip op., at 4–5) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ___, ___ (2015) (slip op., at 4) (a Government official is liable under the 1871 Act only if “ ‘existing precedent . . . placed the statutory or constitutional question beyond debate’ ” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))). We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.” Anderson, supra, at 641–643 (internal quotation marks omitted). We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at (as last visited June 15, 2017).
Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Malley, supra, at 342; see Burns, supra, at 493. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U.S. 356, 363 (2012) (internal quotation marks omitted); see also Tower, supra, at 922–923 (“We do not have a license to establish immunities from” suits brought under the Act “in the interests of what we judge to be sound public policy”). We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.” Reichle v. Howards, 566 U. S. 658, 664 (2012) (internal quotation marks omitted); Harlow, supra, at 807 (explaining that “the recognition of a qualified immunity defense . . . reflected an attempt to balance competing values”). The Constitution assigns this kind of balancing to Congress, not the Courts.
In today’s decision, we continue down the path our precedents have marked. We ask “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted,” ante, at 29 (internal quotation marks omitted), rather than whether officers in petitioners’ positions would have been accorded immunity at common law in 1871 from claims analogous to respondents’. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Now, of course, Justice Thomas is writing only for himself, but I am glad to see somebody on the Court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably "no," but even if the Court disagrees and ultimately concludes that the answer is "yes," I think it would be good for the Justices to give some attention to the issue, and explain why exactly they think it is justified. (As I discuss in the paper, different members of the Court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

In an interesting coincidence, just last week I came across this certiorari petition in the case of Surratt v. McClaran, which asks the Court, among other things, to discontinue or modify the doctrine of qualified immunity. I haven't finished digging into the Surratt case itself -- it appears that police officers choked a woman to death in the back of a squad car while trying to get a baggie of drugs out of her mouth, but the Fifth Circuit found immunity anyway, noting that "previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual's throat where the individual appears to be concealing something in their mouth."

Perhaps the "appropriate case" will be before Justice Thomas and the rest of the Court in just a few months.

[Cross-posted at The Volokh Conspiracy.]

Posted by Will Baude on June 19, 2017 at 04:35 PM in 2016-17 End of Term, Constitutional thoughts, Judicial Process | Permalink | Comments (1)

SCOTUS OT16 Symposium: Jurisdiction and Power in Bristol-Meyers Squibb

I read the Court's opinion in Bristol-Meyers Squibb somewhat differently than Howard does. This doesn't strike me as a purposeful availment case; neither "purposive" nor "avail" (nor derivatives thereof) even show up until Justice Sotomayor's dissent. The majority accepts that BMS has various contacts with California, but denies that those contacts are related to the claims at issue, or that there's "any adequate link between the State and the nonresidents' claims." That looks like an argument devoted to the second prong of the specific jurisdiction test, not the first. (Though he's critical of the Court's holding, Adam Zimmerman apparently agrees on this point.)

Given that the modern three-prong test is largely of the Court's own invention, and not part of the preexisting law of personal jurisdiction, it's hard to say that one concept of "related to" is self-evidently correct. But there are four points on which I think the Court's opinion got it right.

  1. In Part II-B, the Court correctly reiterates that jurisdiction is about power, not fairness. Or, to put it another way, what's "fair" or "unfair" about jurisdiction is whether a particular government is fairly empowered to decide the case. What matters isn't the geography of the courthouse or the expense of putting lawyers and witnesses on a plane; a case might be properly heard in Manhattan but thrown out of court right across the bridge in New Jersey. What matters is who gets to decide. (So the majority properly, albeit silently, throws the contrary language in Insurance Corp. of Ireland under the bus.)

  2. On this view of jurisdiction, the ultimate outcome makes some sense. BMS makes allegedly defective pills in New Jersey and sells them in California and Kansas. Let's grant that California can determine whether those California sales were lawful. But where do its officials get power to make the same decision about the Kansas ones? Who put them in charge? Why should BMS have to obey the pronouncements of a California judge, appointed by California officials and retained by California voters, using California rules on procedure, discovery, evidence, or jury trial? Maybe what BMS did in Kansas was okay, maybe not. But why do Californians get to decide? "Why not Bill Gates, or the Pope?"

    The plaintiffs note that BMS sold the same pills in both places, so it's already made itself subject to the liability determinations of California courts. But in an adversary system like ours, the California courts aren't deciding what really happened; they're deciding who made the better showing in a particular legal proceeding, conducted according to particular rules. (That's why our preclusion doctrines have a variety of internal conditions or exceptions; even a favorable California judgment doesn't mean the Kansans would automatically win in Kansas.) So the power to decide whether BMS injured California plaintiffs doesn't automatically confer a power to make the same decision as to Kansans.

    (Note, by the way, that the Court has never really reconciled its holding on out-of-state damages in Keeton, or for that matter its relaxed standard for choice of law in Allstate, with the state-by-state restrictions it came up with in BMW v. Gore. I'm not sure how it would do that if it wanted to, or what the right answer would be.)

  3. The Court is also probably right that its ruling doesn't sound a death-knell for nationwide small-dollar actions. Plaintiffs could have sued BMS where it actually designed and manufactured the pills, or wherever it's incorporated or headquartered. True, they may not be able to sue all of the relevant defendants there. And there'll be many cases that of necessity are spread across multiple states. But that's not really a criticism of the Court's view of sovereign authority. If modern economic relations are so spread among the states that no one state has authority to determine the whole, isn't that an argument for, rather than against, dividing up the cases?

  4. Importantly, the Court explicitly reserves the question of how to handle these cases in federal court. I've argued before that most hard personal jurisdiction cases really belong in federal court; the United States government has undoubted authority to tell the parties what to do, and Article III enables jurisdiction over diversity cases for a reason. This doesn't happen today because Rule 4(k)(1)(A) unwisely forces federal courts to pretend that they're state courts for personal-jurisdiction purposes. As cross-border transactions grow ever more extensive, it'd be better if the energy now focused on the law of state personal jurisdiction were instead focused on reforming the rules for federal courts.

Posted by Stephen Sachs on June 19, 2017 at 03:38 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink | Comments (1)

SCOTUS Symposium: Setting fire to House Bivens

"If you're cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not  set fire to the house." So said Justice Breyer in dissent in Ziglar v. Abbasi, in which the Court rejected Bivens claims against high-level executive officials brought by mistreated post-9/11 detainees (although left a small glimmer of hope for a claim against the warden), and in the process may have limited Bivens to claims against line officers for immediate violations of a small group of rights. In other words, the majority may have set fire to the House of Bivens.

 Some thoughts after the jump.

1) This was a 4-2 decision, with Justice Kennedy writing for a majority of the Chief, Thomas, and Alito, and Justice Breyer dissenting with Justice Ginsburg. Justice Sotomayor recused because she was on the  Second Circuit when earlier iterations of this case were heard, Justice Kagan recused (because she was SG when earlier iterations of the case arose), and Justice Gorsuch did not participate (he was not on the Court). It remains to be seen how much weight a decision from such a small Court will gain. Everyone likely assumes that the judgment would have been the same with a full Court, with Gorsuch joining the majority and Sotomayor and Kagan joining the dissent.

2) Two themes have been floating around the recent Bivens cases. One is the idea of "extending" Bivens to new contexts beyond the three cases in which SCOTUS recognized a claim and how the Court should hesitate to do so. The other is the connection between Bivens and implied statutory rights of action and the Thomas/Scalia position that Bivens was a "relic of the heady days in which this Court assumed common-law powers to create causes of action. Both ideas came home to roost today.

3) As for the second theme, Justice Kennedy timed the creation of Bivens to the rise of the implied right of action doctrine, noting that Justice Harlan relied on those cases in identifying an implied constitutional claim. It followed that the Court's narrowing of implied statutory rights makes "expanding" Bivens a "disfavored" activity. Both rest on separation-of-powers principles under which Congress, not the courts, should decide whether a damages remedy exists. If the Court is not implying rights of action, then it should not recognize "new" Bivens claims.

4) As for the first theme, this led the Court to crystalize a three-part test for whether a Bivens claim is available (both the majority and dissent agree on this test):

   a) If the case is different in a "meaningful way" from previous cases decided by SCOTUS, then the context is new. Factors that suggest meaningful differences include the rank of the officers, the constitutional rights involved, the generality or specificity of the right involved, the extent of judicial guidance of how the officer should respond, the statute under which the officer operated, the risk of disruption of other branches, or the presence of new special factors not considered in past cases. As to the high-level executive officers, this was a new context, involving high-level policy following a terrorist attack; as to the warden, this case involved a new right (Fifth Amendment rather than Eighth), less guidance as to constitutional obligations, and congressional action suggesting intent not to provide a remedy--all small differences, but "even a modest extension is still an extension."

   b) There is consideration of alternative remedies, although it is unclear how. The majority several times emphasized the availability of alternative remedies for the constitutional violations here, namely habeas and injunctive relief. Breyer treated this as its own second step. [Update: I will link to Steve's post at Just Security pointing out that habeas likely is not available to challenge conditions (as opposed to fact) of confinement and Kennedy himself hedged on whether habeas was available in this kind of case]

   c) Special factors counseling hesitation. Here, these include the national-security context, that this case entails challenges to and inquiry into federal policy discussions and decisions, that the claims go beyond ordinary law enforcement, that Congress has done nothing in its post-9/11 litigation to provide any remedies for detainees challenging their mistreatment, and that injunctive and habeas remedies are available (again, it is not clear where this belongs in the analysis). To the extent there is a balance to be struck between these special factors and the needs for deterrence of executive misconduct, it is for Congress to strike that balance. The Court did remand for the Second Circuit to do the special factors analysis as to the warden.

5) Justice Breyer was explicit that the above is the three-step test, but he saw the factors going the other way. He did not see this as a new context, or, if it was, the claim survived steps two and three.

6) Breyer calls the majority on what I believe has been a problem in the recent Bivens cases: the confounding of the constitutional merits, qualified immunity, and cause of action. Breyer works through the list of factors that the majority identifies for defining when a context is new, insisting that some go to whether a constitutional right was violated, some go to whether that right was clearly established so the officer enjoys qualified immunity, and some are better case as special factors for step three. But none should go to the cause of action. The majority makes this worse with its consideration of alternative remedies, which hangs around the analysis throughout the case, not belonging in any clear place. The majority seems to be in a hurry to get rid of cases such as this, but it does so by focusing so much on the cause of action rather than the substantive merits and substantive defenses. Or consider how the majority uses national security as a special factor counseling hesitation before recognizing the cause of action. That factor can be taken into account at other points--in pleading requirements, on the merits, in assessing immunity, and in shaping discovery. Given these existing safeguards, there is no need to double-count it at the threshold--that is setting the house on fire.

7) That last point gives rise to another problem Breyer addresses: The "anomaly" of different analysis for claims against state/local officers as opposed to federal officers (we might also call this a lack of parallelism between claims against the former compared with the latter). A plaintiff can pursue a § 1983 claim against a mayor or governor but not a Bivens claim against a high-level DOJ official, for the same conduct violating the same right. And even if claims fail, they fail for different reasons: The claim against the federal officer fails because there is no cause of action, while the claim against the state/local official fails because the right was not violated or because it was not clearly established. That distinction makes no sense.

8) Breyer closes his opinion with a point he made during argument about the special need for damages actions in the national-security context. Damages claims can be resolved after the emergency has passed, with more information about the situation and a cooler eye towards the facts. And courts may be less likely to to issue injunctive or habeas relief in the middle of an emergency. It therefore makes no sense to rely on those remedies to preclude the later damages remedy--damages play a special role, with courts able to consider after passions have died down. The majority's approach reflects the general favoritism towards injunctive rather than damages relief in the constitutional context.

9) Justice Breyer cites Jim Pfander's new book on Bivens and GWOT, at one point seeming to adopt Jim's view that Congress' decision not to immunize individual officers under the FTCA for constitutional violations reflects an intent to leave Bivens in tact as the means for remedying constitutional violations, while putting non-constitutional torts through the FTCA.

10) Steve Vladeck had a Twitter thread on this case, pointing out that Hernandez v. Mesa, another Bivens case, remains undecided and could pull back on some of what the majority did here. But he suspects if that were to happen, the opinions would have issued at the same time. I wonder if Hernandez will be resolved on qualified-immunity rather than Bivens grounds.

11) As I said in my earlier post, I now have to rewrite my Bivens chapter. Oh well.

Thanks for wading through a long post.

Thanks for sitting through a long post.

Posted by Howard Wasserman on June 19, 2017 at 03:04 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS symposium: The Freedom of Speech

It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech.  Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses.   Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. 

As many Prawfs readers will know, groups of law professors weighed in on both sides of the case (see, e.g., here and here).

Posted by Rick Garnett on June 19, 2017 at 02:47 PM in 2016-17 End of Term | Permalink | Comments (1)

SCOTUS Symposium: Narrowing specific jurisdiction

The post-2010 revival of personal jurisdiction in SCOTUS (after a two-decade absence) has been defined in part by narrowing general jurisdiction, including last month in BNSF. In Bristol-Meyers Squibb v. Superior Court, an 8-1 Court (per Justice Alito) turned the screws on specific jurisdiction. The Court held that there was no jurisdiction in California over claims by non-residents for non-forum injuries, even when caused by the same nationwide conduct. Justice Sotomayor again dissented alone, as she has been in the general-jurisdiction cases, continuing to play the Justice Brennan role of finding personal jurisdiction in almost every case. She criticized the decision as the "first step toward a similar contraction of specific jurisdiction." 

For the majority, there was no purposeful availment as to the non-California plaintiffs because they were not prescribed, did not purchase, did not ingest, and did not experience injury from Plavix in California; that other plaintiffs were injured in California was beside the point. There must be a connection between the forum and each specific claim, with "claim" meaning one plaintiff, one defendant, and one right. Keeton v. Hustler did not help, because defamation hatmed the people of the state even as to an outsider plaintiff and because the issue there was whether one plaintiff could pursue a full claim against one defendant. The majority closed by rejecting the "parade of horribles" that plaintiffs raised, insisting that there were lots of other forums plaintiffs could go: New York and Delaware (where BSM is essentially at home and subject to general jurisdiction), "probably" in other states with lots of injured plaintiffs (there were dozens of plaintiffs from Texas who all could sue there), and maybe federal court (an open question, but probably not at the moment, because there is no statutory authorization for such jurisdiction).

Justice Sotomayor viewed the case as easy under the three-part Shoe analysis: 1) BSM purposefully availed given its massive sales and marketing in California; 2) the non-resident claims "related to" the forum because they have a "connection with" California, in that all plaintiffs in all states were injured by "the same essential acts" or "materially identical acts" to BSM's marketing and sales in California; 3) it was not unreasonable to make BSM defend the non-resident claims in California, since it already was defending the resident claims. Sotomayor also threw in an aside that she would measure jurisdiction first and foremost by fair play and substantial justice, elevating the third prong of the analysis to the first prong. She also pointed out, correctly, that the majority hasd no response to the "relate to" prong; it cited only Walden v. Fiore, a case that dealt with lack of minimum contacts, not whether those contacts gave rise or related to the claim. She also was correct as to Keeton--there is no meaningful distinction between a defendant haled into court by one non-resident plaintiff over nationwide conduct and haled into court by many non-resident plaintiffs over nationwide conduct. Sotomayor closed with her concerns about what this does to mass-tort litigation and the insufficiency of the alternative forums the majority suggests remain.

Some last thoughts:

1) I wrote after BNSF that BSM was the important personal-jurisdiction case for the Term. If general jurisdiction has narrowed, the solution is to broaden specific jurisdiction by broadening when a claim arises out of or relates to the contacts. But the majority did not go there, nor did it offer a good answer or guidance as to what arise out of/relate to means. Instead, it let the first prong--purposeful availment--do all the work by holding that BSM did not purposefully avail as to the non-resident defendants. But that is the problem. There should be no doubt that BSM purposefully availed, given its massive sales and advertising in the state (constituting both stream-of-commerce and seek-to-serve) and the fact that it is a nationwide corporation doing nationwide business; the question should have been whether those contacts gave rise to the non-res claims. But the majority did not frame the case in those terms. As in Nicastro (especially Justice Breyer's concurring opinion), the Justices seem unwilling to let the other two prongs of the analysis do any work.

2) What is Justice Ginsburg thinking? She wrote a sharp dissent in Nicastro. Otherwise, she wrote the three opinions narrowing general jurisdiction and joined the majority in the decisions narrowing specific jurisdiction. Sotomayor cited Ginsburg's Nicastro dissent in FN 3 in rejecting BSM's proferred narrow interpretation of relate to.

Update: A third point: The effect of this is to give large corporate defendants forum advantages over plaintiffs. A large group of plaintiffs wanting to pursue a corporate defendant must go to the defendant's home turn. Or they must go to federal court (maybe), which has shown itself to be more defendant-friendly in recent years. For many plaintiffs, neither is an enticing option.

Posted by Howard Wasserman on June 19, 2017 at 12:39 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

SCOTUS Symposium: Busy Day

SCOTUS came into today with seventeen remaining cases and two weeks to do. The Court cut a big chunk of that out on Monday, with five opinions, four of which were on cases I have been trying to follow:

Matal v. Tam: Declaring invalid under the First Amendment the disparagement provision in the trademark laws.

Packingham v. NC: Declaring invalid under the First Amendment a North Carolina statute prohibiting convicted sex offenders from using social media.

Bristol-Myers Squibb v. Superior Court: Rejecting an assertion of personal jurisdiction in a mass-tort action.

Ziglar v. Abbasi: Severely limiting Bivens, certainly in the national-security context and perhaps for everything beyond claims against line police officers. This one forces me to rewrite the Bivens chapter in my civil rights book.

McWilliams v. Dunn: Granting habeas relief and overturning a death sentence for failure to provide mental-health experts to the defense.

Our team of bloggers will be weighing in throughout the week. I will try to hit the procedure cases today and the speech cases tomorrow.

In addition, the Court announced that Thursday will be an opinion day.

Posted by Howard Wasserman on June 19, 2017 at 11:20 AM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (0)

Saturday, June 17, 2017

SCOTUS Symposium: Patent Law & Legal Process

This past Monday (6/12/17), the Supreme Court issued its sixth (!) patent case of the term, Sandoz v. Amgen. The lone copyright case for the Term, Star Athletica v. Varsity Brands, came down in late March. The lone trademark case for the term, Lee v. Tam, has yet to issue. The Court in Sandoz reversed the Federal Circuit in part, and affirmed it in part (though on a different rationale). Relative to the other five cases, that’s an improvement for the Federal Circuit; in those other five, the Court simply reversed the Federal Circuit outright. Across all six cases, there were dissents in only two (Impression Products, and SCA Hygiene), and both were lone dissents. The Court largely agrees that the Federal Circuit is largely wrong.

Professor John Duffy, an especially astute observer of the Supreme Court’s return to patent law in the mid-1990s (see, e.g., The Federal Circuit in the Shadow of the Solicitor General, 78 Geo. Wash. L. Rev. 518 (2010)), has—at SCOTUSblog—summarized the Court’s decision in Sandoz with his customary clarity. That’s no small feat, given the complexity of the biologics/biosimilars statute at issue in the case. More important than the summary, though, are Professor Duffy’s observations about the broader relationship between the Supreme Court and the Federal Circuit’s patent law decisions. First, observes Duffy, the Court is deciding more patent cases: “Now the court has been averaging over three cases per term for several years, and two more are already slated for argument next term. The lesson to patent lawyers is clear: Every significant issue in patent law could end up at the Supreme Court.” Second, the two courts are at odds in patent law: “the justices have not—to put it mildly—provided a ringing endorsement of the Federal Circuit’s patent jurisprudence. That provides an especially hard lesson for lawyers: They constantly face the challenge of preparing their patent cases for two audiences of appellate judges who often see the law in systematically different ways.”

The October 2016 Term parallels, in these respects, the October 2013 Term, in which the Supreme Court heard six other patent law cases on review from the Federal Circuit. None of those case drew a dissent, and only one (Alice Corp v. CLS Bank) drew a concurrence (and a brief one at that, comprising a single 3-sentence paragraph plus citations). The Supreme Court reversed, 9-0, in five of the six cases; it affirmed, 9-0, in the sixth.

I began looking at the Supreme Court’s post-1993 patent law decisions more systematically after the 2013 Term. There are 46 such cases, starting with Asgrow Seed v. Winterboer, 513 US 179 (1995), and ending with Sandoz v. Amgen. The 5-year running average of patent cases per Term, now at 4, is at a level not seen since the early 1940s (as I read Fig. 2 in Duffy’s 2010 paper). Below is a graph of the running average. For comparison, I include the 5-year running average for the sum of the copyright and trademark cases, which—even together—run well behind.


There are many things to say about this run of patent cases. But I think it’s fair to summarize the overall pattern as follows: 2/3rds of the Supreme Court’s patent law decisions in this period are unanimous (and 91% are 9/0, 8/1, or 7/2); 2/3rds of them are flat reversals of the Federal Circuit; and authorship of the opinions is spread across the Court’s full ideological spectrum. Justice Thomas has written 11 of the majority opinions, and Justices Breyer and Sotomayor have each written 5 of the majority opinions. In short, there is full Court agreement on largely unanimous rejection of Federal Circuit patent law decisions, even as it reviews those decisions more often.

What’s happening? It’s not just boredom, which would explain unanimity but not an increase in cases. It’s not an “IP is important!” vibe, which would show an uptick not only in patent but in copyright and trademark cases too (not seen) and would not explain the unanimity or the reversals. It’s not even a “patent law is important!” vibe, which—again—would explain neither the high unanimity rate nor the high reversal rate. There’s a growing literature that explores the issue, and I’m working on a draft paper myself. The full answer must wait. But, my short answer is, the Legal Process—i.e., Hart & Sack’s The Legal Process (1958). The strongest tell, in this vein, is this Term’s decision on the patent venue statute, TC Heartland v. Kraft Foods Group. The opinion, 8-0, is an exemplar of Legal Process reasoning ~ heavy reliance on stare decisis, and a keen appreciation for the different institutional roles that Congress and the courts play in providing settled ‘rules of the road.’ And this is so even though it makes patent law very much unlike other federal cases, which are controlled by the general federal venue statute. (The June 12 episode of the First Mondays podcast astutely notes this facet of TC Heartland.)

Perhaps the Supreme Court has found, in patent law (which is exclusively federal, and which has a weak agency and a governing statute that includes at least some text dating back to 1793), a domain in which it can express core Legal Process values that all the justices endorse, and that all can equally well articulate for a frequently unanimous court. In many areas, the justices go at each other hammer and tong, with many 5-4 and 6-3 decisions. In patent law, by contrast, the justices calmly reflect the whole Court’s commitment to Legal Process norms (weathered a bit, of course, by law & econ critiques from the right and CLS critiques from the left). The Court’s citation patterns in these case are certainly consistent with a prominent role for stare decisis. I’ve been tallying, from these 46 Supreme Court patent cases, all the other Supreme Court cases cited at least once in a given case, as well as the Courts of Appeals cases cited (from both the Federal Circuit and the regional circuits).

A few observations about the citations, across all 46 cases . . .

The Court cited a total of 669 other Supreme Court cases, 326 patent cases and 343 nonpatent cases. The median number of other S. Ct. cases cited, in any given case, is 12.0 (and the average is 14.5). The Court cited a total of 216 Court of Appeals cases (less than a third as many as S. Ct. cases), 98 from the Federal Circuit and 118 from the regional circuits. (Of the 118 cites to regional circuit cases, 25 were to the 2nd Circuit and 20 were to the 7th. The next highest was the 3rd Circuit, with 12.) The median number of Courts of Appeals cases cited, in any given case, is 2.5 (and the average is 4.7)—about 1/5th the median number of S. Ct. cases cited per decision.

The age range of the other S. Ct. cases the Court cites (in the 46 patent cases) is large, stretching from 1803 to 2016. And though more recent cases are cited more frequently, the cites to older cases are by no means infrequent. The first graph below groups cited cases by decade, marking frequency of citation to cases in that decade and the cumulative percentage of the 669 cases contributed by that decade. Nearly 50% of the cases cited are from before 1977. The second graph below groups cases by how old they were when cited, again showing frequency and cumulative percentage. Nearly 50% of the cases were 50 or more years old when cited.



If one separates the 326 cited S. Ct. patent cases from the 343 nonpatent cases, the greater age of the cited patent precedents is even more apparent. Among the cited S. Ct. patent cases, the median year of decision is 1942 and the median age of the cases when cited is 65 years. By contrast, among the cited S. Ct. nonpatent cases, the median year of decision is 1986 and the median age of the cases when cited is 25 years.

Of course, as is common in studies of citation rates, a smaller number of cases garners a larger share of the citations. Among the cited S. Ct. nonpatent cases, only one—Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 US 1 (1983)—is cited in three different cases; the remainder are cited in two cases or, far more often, in only one case. Among the cited S. Ct. patent cases, 34 cases are cited in 3 or more cases. One (Bonito Boats v. Thunder Craft Boats, 489 US 141 (1989)) is cited in 10 of the 46 decisions, one (Diamond v. Chakrabarty (1980)) is cited in 6 of the 46, 7 are cited in 5 of the 46, 13 are cited in 4 of the 46, 12 are cited in 3 of the 46, and the remaining are cited in two or one. Among these same 34 cases, although 8 (23.5%) were decided after 2000, 7 (20.5%) were decided in the 1800s.

The challenge for patent litigators is even greater, perhaps, than Professor Duffy suggests. In the Supreme Court’s opinions explaining its approach to patent law, a 19th-century precedent is as likely to prove germane as a 21st-century precedent. This is certainly consistent with strong-form stare decisis, and the Legal Process jurisprudence that underwrites it. But is it the felt sense of most patent litigators about how to handle the legal infrastructure of their cases? I doubt it.

Posted by Joe Miller on June 17, 2017 at 02:50 PM in 2016-17 End of Term | Permalink | Comments (0)

Thursday, June 15, 2017

SCOTUS Symposium: Peña-Rodriguez v. Colorado

Even in what David has rightly called “not a particularly important term,” there are some cases that stand out. One case that I suspect will have long-lasting influence is Peña-Rodriguez v. Colorado, decided earlier this spring on March 6.

The case dealt with extreme racial bias in the jury room—what Justice Kagan referred to as “the best smoking-gun evidence you’re ever going to see about race bias in the jury room.” The jury had struggled with in reaching a verdict in a sexual assault case. One juror stated that he believed the defendant was guilty because “Mexican men” have “a sense of entitlement” and a “bravado” that makes them think they can “do whatever they want” with women.

But because that evidence dealt with confidential juror deliberations and was not disclosed until after the jury had reached its verdict, the Colorado courts held that this statement could not be used to impeach the jury’s verdict under CRE 606(b), and the defendant’s conviction should stand.

In a 5-3 opinion authored by Justice Kennedy,

the Court sent the case back for a retrial before a new jury. The Court’s holding—that such egregious racial bias in the jury room deprived the defendant of his constitutional right to an impartial jury—was not surprising. And hopefully cases with such clear jury bias will be few and far between.

Nevertheless, the case will likely have significant ramifications. The Court was clear to limit its holding to cases of racial bias only, and not to other types of jury bias or misconduct. The Court distinguished past cases in which it had refused to allow inquiry into a jury’s improper compromise verdict or a juror’s pro-defendant bias. Justice Kennedy’s opinion noted that while “[a]ll forms of improper bias pose challenges to the trial process,” racial bias raises “unique historical, constitutional, and institutional concerns” and “if left unaddressed, would risk systemic injury to the administration of justice.”

Justice Alito, joined by Chief Justice Roberts and Justice Thomas, dissented. The dissenters pointed out that it is very difficult to remedy some types of juror impartiality and not others, noting that “What the Sixth Amendment protects is the right to an ‘impartial jury.’ Nothing in the text or history of the Amendment or in the inherent nature of the jury trial right suggests that the extent of the protection provided by the Amendment depends on the nature of a jury’s partiality or bias.” They express concern that the “ruling will also prompt losing parties and their friends, supporters, and attorneys to contact and seek to question jurors, and this pestering may erode citizens’ willingness to serve on juries.”

It seems likely that the dissenters are right that the holding will increase lawyers’ post-trial efforts to question jurors about what happened in the jury room. And it also seems likely that, in many cases, lawyers will hear stories of juror bias and misconduct. This may create a no-win situation; Justice Kennedy is surely right that refusing to remedy such egregious racial bias would diminish trust in the justice system. But regular inquiry into the jury’s deliberations might have a similar effect.

I’m not sure that there’s a good solution to that dilemma. One possible answer is a greater use of the trial judge’s ability to order a new trial on the weight of the evidence, which might preclude the need to inquire into the jury’s deliberation in cases where bias seems probable. I have written elsewhere that I think the Peña-Rodriguez case could have been a good vehicle for such a remedy—and if the judge had granted a new trial on the weight of the evidence, then the defendant’s remedy would not have depended on the jurors’ testimony. 

Posted by Cassandra Burke Robertson on June 15, 2017 at 10:57 PM in 2016-17 End of Term | Permalink | Comments (2)

SCOTUS Symposium: Is it unethical to ghost-write a brief in opposition?

As we await the release of more opinions and orders next week, I wanted to write out an argument I've been developing for some time about the practice of ghost-writing briefs in opposition to certiorari. In short: although it is widespread, I think the practice is harder to defend than many think, and raises serious issues that I do not regularly hear acknowledged.

For the unfamiliar, the basic issue is this. Oftentimes a client will want to retain expert Supreme Court counsel at the petition stage, but would like to keep this a secret. In particular, the client wants the brief in opposition to be written by an expert, but doesn't want to "tip off" the Court that they've retained that expert—the theory being that the Court will be more likely to grant cert if they know an expert has been retained on the opposing side. So they have their expert write the brief in opposition, but deliberately omit her name from the filings, to try and trick the Court into believing (falsely) that the expert was not involved. The ideal outcome, from the client's point of view, is that the Court wrongly believes the expert was not involved and so denies cert when it would otherwise have granted, allowing the client to preserve a victory that would otherwise have been at risk had the Court been made aware of the facts.

I have a problem with this practice, because I have a problem with lawyers lying to courts. To be sure, this practice does not involve any outright misrepresentation, but of course it can also be a lie to deliberately omit information when the purpose is to cause a person to misunderstand the truth. That is why, for example, the ABA's model rules of professional conduct provide that "there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." And the stated purpose for omitting the name of the expert is precisely because the client does not want the Court to know the truth—indeed, the client's entire object is to create a false impression and so to influence the Court's decision-making process.

But fishermen worship sea gods, and the business of ghostwriting pays a lot of people's mortgages. As a result, my argument has not met with universal agreement. I have heard several genres of responses, which I will catalog and answer after the jump.

In general, the responses can be broken down into several species: (1) doing this helps one's client; (2) the Court does not care who the lawyers on a case are, so it does not matter if they are omitted; (3) the Court ought not care who the lawyers are, so it does not matter if they are omitted; (4) the rules do not require disclosure of this information, so it cannot possibly be unethical to omit it. I'll address each of these in order.

  1. But it's in the client's best interest. Least persuasive of all, to me, is the response that omitting this information is in the client's interest, and so it is acceptable. For the purposes of this argument, I will not dispute the premise: if one's client wants cert denied, it may well be in the client's best interest to conceal the fact that they have retained expert counsel. That, at least, is the premise for this particular ruse, and I am willing to grant that premise is believed in good faith.

    (As it happens, I am not entirely convinced that the premise is true. The Justices and their law clerks are not stupid, and if an expertly done BIO is said to be written by a first-time Supreme Court litigator who specializes in slips-and-falls in central Florida, no one is going to be fooled into thinking that he didn't have help. But: whatever. Let us assume that the client really will be served by this tactic.)

    The problem is that this proves absolutely nothing because lawyers are never permitted to deliberately mislead a court just because it would help their client. It would often help one's client to lie to a court. But the traditional understanding of a lawyer's obligations is that they do not simply run to the client, but to the court of which that lawyer is admitted to the bar: that is why, when Supreme Court lawyers are sworn in by the Clerk of Court, the Chief Justice extends to them a warm welcome as "officers of the court," not merely mercenaries who are given a certificate in exchange for two hundred bucks.

    In other words, if one agrees with my premise (that this is a deliberately misleading omission), then it is utterly insufficient to reply that it is one that is in the client's interest. Either one must deny the premise and argue that this is not a deliberately misleading omission or one must argue this is a circumstance in which a lawyer is permitted to mislead the court for some reason other than client interest.
  1. The court doesn't care who the lawyers are, so it's fine to omit this information. A more promising but still ultimately insufficient response is that this is not a material omission because the Supreme Court does not care who the lawyers are. After all, "quality of counsel" is not listed in Supreme Court Rule 10 as one of the considerations governing certiorari. The problem with this argument is twofold.

    First, the Supreme Court's rules explicitly provide that certiorari is a matter "of judicial discretion," and the factors listed in Rule 10 are not "controlling," nor do they "fully [measure] the Court's discretion." (I first saw this point made on Twitter by our co-symposiast Dan Epps.) To take another example, so-called "vehicle problems" (such as the presence of serious questions going to standing, or preservation of the issue below, or whatever) are also not listed in Rule 10, and yet it is understood perfectly well that the Court cares about such matters. Stern & Gressman have many, many pages on considerations going well beyond Rule 10.

    Second, and more important, the entire reason that lawyers conceal the presence of expert counsel is because they think the Court does care. The tactic would make no sense otherwise. I do not doubt that there may be reasons to omit a lawyer's name that are immaterial to the Court: perhaps, for example, the lawyer simply does not want herself associated with the client in public for professional reasons that the Court has no interest in. Fine. That is a different circumstance. I am arguing here only about a situation in which a lawyer is omitted because the client does not want to "draw the Court's attention" to the petition, in the hopes that it will be denied where it would otherwise have been granted. There, it is impossible to argue for immateriality.

    (A species of this argument is that it is routine not to list every lawyer who works on a filing—a junior associate, for example. I think such lawyers should be listed more often than they are, but at any rate, their omission is not deceptive because it is immaterial, and is not done to mislead the Court.)
  1. The court shouldn't care who the lawyers are, so it's fine to omit this information. A refined version of the argument above is that the Court ought not care who the lawyers in a given case are. On this view, the Court's preference for quality lawyering is simply illegitimate—and so concealment of this information is  justified on that ground. This argument makes headway by at least acknowledging that there is deception afoot, and attempting to justify it.

    I have no doubt that there are circumstances in which it is acceptable to lie to someone, and for lawyers to lie to a court. An example that I have heard several times: imagine the Court had members who were thoroughly anti-Semitic, and who did not want to grant cases on which Jewish lawyers had worked. Surely, it would be acceptable to lie about the presence of (say) a young Justice Ginsburg on the filings then. As to that, I agree. But again, there are two problems with this argument.

    First, it is far from obvious that a preference for experienced counsel is illegitimate. The nature of the Court's work is that if an issue is significant, the Court will have many chances to address it—so it is not obvious to me that having high-quality lawyering on both sides is prima facie illegitimate as an object. Certainly the structure of the United States government suggests otherwise: the Office of the Solicitor General specializes precisely because it is believed it will help the Court to have very good lawyers in the many cases in which the government is a party. Many states have made the same decision. Anyone maintaining this argument with an analogy like the one above would therefore carry a very heavy burden, and moreover would have to accept that they were lying for a justified reason. I would hope that the bar for acceptable reasons for a lawyer to lie to a court would be very, very high.

    Second and again more important, there is a one-sidedness to this argument that gives away the game. If it is unacceptable for the Court to consider the identity of the advocates when reading a brief in opposition, it must be equally so when reading a cert petition. Yet I have not heard anyone argue that it is unethical for prominent or expert Supreme Court advocates to include their names on a cert petition. (I am grateful to Jason Steed for raising this point.) That, however, is exactly what this argument would require—unless it is for some reason unacceptable for the Justices to consider the identity of counsel in a BIO but not on a petition, a strange position indeed.
  1. The rules don't require it. One final objection. Rule 34.1 provides that "the name of the attorney who is counsel of record" must be included on each filing, and there may only be one such person. The names of other attorneys "may be added." The argument goes that this explicitly permits the omission of anyone other than the person who is to be "counsel of record," which person need only be admitted to the bar.

    But although Rule 34.1 affords a measure of discretion on who to include, that discretion—like all such grants—can be abused. A classic way to abuse one's discretion to disclose information would be to exercise it in a way calculated to mislead. At most, all this argument establishes is that Rule 34.1 does not forbid ghostwriting, but I have never claimed that it does. Rule 34.1, like all rules, must be understood against a background requirement of good faith and honesty by lawyers practicing before the Court.

I am well aware that the practice of ghost-writing BIOs is common. But my argument is not that it is uncommon, but that it is calculated to mislead the Supreme Court, and that it is—for that reason—unethical. It may well be a form of deception that aids one's clients, but it is not a practice I think members of the bar should engage in, and it is something that I hope the Court will one day explicitly forbid.

Posted by Ian Samuel on June 15, 2017 at 07:05 PM in 2016-17 End of Term | Permalink | Comments (22)

Wednesday, June 14, 2017

Remand in Haeger v. Goodyear

I covered Goodyearv. Haeger for SCOTUSBlog earlier in the Term, when the Court held that bad-faith attorney's fee sanctions must satisfy a but-for causation requirement. SCOTUS vacated the award (of $ 2.7 million) and remanded to the Ninth Circuit to decide whether Goodyear had waived its challenge to anything beyond $ 700,000 of the award. Last week, the Ninth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard. Judge Smith dissented from the remand. He argued that the record as to waiver was complete and that the court of appeals could decide the issue. He suggested that there was a waiver. And he opined on why the $ 2 million award satisfies the but-for standard SCOTUS introduced.

Posted by Howard Wasserman on June 14, 2017 at 11:24 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, June 13, 2017

SCOTUS Symposium: A departmentalist take on Morales-Santana

Richard's post about the Morales-Santana Court conflating judgment and precedent prompts a question: What if Congress and the Executive decide, in a fit of departmentalism, that the current differential treatment of unmarried-mother citizens is constitutionally valid? Congress refuses to amend the statute (or the President vetoes the proposed amendment) and the Executive continues removing people situated as is Morales-Santana by treating them as non-citizens, even while continuing to treat a comparable child of an unmarried-mother citizen as a citizen.

There is no judgment or order compelling Congress to change the law, something a court could not do in any event. There is no judgment compelling the executive to treat anyone other than Morales-Santana a certain way or declaring the rights of anyone other than Morales-Santana. A court cannot, through a declaratory judgment, adjudicate the rights of non-parties (I agree with Richard that this might be what the majority saw itself as doing). Departmentalism does not result in a constitutional stalemate (or devolves into judicial supremacy in practice) because at some point the judiciary has a final card in the form of a judgment in a particular case as to a particular person that government must follow on pain of contempt and that makes the Court's constitutional vision applicable to a person. The problem in this case, and in the cases likely to follow from it, is getting to that enforceable judgment that benefits some person in a way adverse to the government.

So let's play this out:

X is the child of  unmarried-father citizen who lived in the US for 4 years and 364 days, 1 year and 364 days after age 14, where the parents. The government seeks to remove. X cannot argue that removal is prohibited by a court order, because there is no judgment affecting him in place. So he goes into the BIA process, arguing that removing him as a non-citizen violates equal protection because unmarried-mother citizens (and their children) continue to be treated differently.  The BIA accepts his argument, following Morales-Santana (are BIA proceedings subject to the same rules of precedent as lower federal courts?). Or the BIA rejects his claim, but the court of appeals reverses, as it is unquestionably bound by Morales-Santana to hold that the differential treatment is unconstitutional. But now we are in the same place we are this morning--the statutory scheme is unconstitutional, but the court of appeals will be similarly reluctant to remedy by leveling up, meaning X remains subject to § 1409(a) (the 5/2 residency rule) and remains removable. And Congress and the executive remain free to ignore the precedential piece of the decision in X v. Sessions when it then seeks to remove Y, another child of an unmarried-father citizen.

How do we get out of this loop? One possibility is Mark Tushnet's suggestion that the court could/did order the government to exercise its discretion not to remove because the basis for removal was unconstitutional. If the government starts losing these cases and being unable to remove, it will amend the statute or change its enforcement mechanisms. A second possibility is that at some point the Court, tired of congressional or executive intransigence, remedies the violation in X's case by leveling up, requiring the government to subject X to the one-year exception and prohibiting removal. That will get Congress and the executive moving, to the extent they do not want one year to be the residency requirement for everyone.

This is all moot, because the government has agreed to level down for everyone going forward. But it shows the extent to which judicial supremacy has carried the day. The court can get away with an "order" such as the one in Morales-Santana because it knows that Congress and the executive will follow its declarations of constitutional law.

Posted by Howard Wasserman on June 13, 2017 at 10:23 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS Symposium: Most significant volume of U.S. Reports

Something fun to consider: What volume of United States Reports has the greatest number of canonical or important cases, whether legally or historically?

My nominee: Volume 403 (OT 1970), which contains:

Bivens; Cohen; Lemon; New York Times v. US (Pentagon Papers); Griffin v. Breckenridge (§ 1985(3), part of the KKK Act of 1871, reaches private conspiracies); Palmer v. Thompson (this one is anti-canon: Closing community pool to avoid integration OK); Rosenbloom v. Metromedia (no longer good law, but the high point of the expansion of New York Times v. Sullivan); Clay v. United States; and Coolidge v. New Hampshire.

That is a pretty strong batting lineup.

Defend alternative nominees in the comments.

Posted by Howard Wasserman on June 13, 2017 at 09:31 AM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Morales-Santana's Many Judgments (SCOTUS Symposium)

Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court's theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.


Here’s a brief account of what happened. Various statutes govern when children born abroad are granted US citizenship. One of these laws created what I will call a “special rule,” granting citizenship to certain people after a relatively brief period of US residence. But in creating that special rule, Congress used a gender-based preference—in particular, a preference for the children of unwed US-citizen mothers. This meant that children of US-citizen fathers could not benefit from the special rule.

Enter Morales-Santana, who is a child of a US-citizen father. When the government sought to deport him, Morales-Santana claimed that he should benefit from the special rule described above. His argument was straightforward: the special rule cannot be offered exclusively to the children of US-citizen mothers, or else it would violate equal protection. To avert that violation, Morales-Santana argued, the special rule must be available to the children of children of US-citizen fathers—including Morales-Santana himself.

Now, there is a lot to say about the merits of Morales-Santana’s equal protection claim. But that is not the part of the case that I am focused on here. Rather, I am currently interested in the remedy that the Court adopted after it concluded that the special rule was unconstitutional. The remedy issue is interesting because, despite agreeing with Morales-Santana on the merits, the Court ended up agreeing that Morales-Santana lacked citizenship and could be removed.

But how could Morales-Santana lose his immigration case, even though he had been denied relief pursuant to a discriminatory law? The answer is that there are two ways of remedying discriminatory treatment. One way is to “level up” by granting better treatment to all, without engaging in discrimination. The other way is to “level down” by granting worse treatment to all, again without engaging in discrimination. Here, the Court leveled down.

The Court’s reasons for leveling down are a bit intricate and merit more scrutiny than I can offer in this post. Basically, the Court decided to imagine what Congress would have done if it had realized that the special rule engaged in forbidden gender discrimination. And the special rule was, well, special. It was an exception to a generally applicable default regime. So, absent the special rule, Congress would presumably want the default rule to apply.

But there’s one more twist. For many years, children of US-citizen mothers had benefited from the special rule. You might expect the Court to revoke those people’s citizenship. After all, they had all benefitted from what the Court has now held to be a gender-discriminatory special rule. But that step proved to be one too far. Instead, the Court held—virtually without explanation—that the leveling down would be “prospective” only.

Justices Thomas wrote separately to point out that the Court’s remedial holding seemed to moot its merits analysis. Joined by Justice Alito, Thomas suggested that the Court could simply have assumed a merits violation arguendo and then explained that the proper remedy would then be to level down. The majority’s footnoted response is interesting:

JUSTICE THOMAS, joined by JUSTICE ALITO, sees our equal protection ruling as “unnecessary,” given our remedial holding. But, “as we have repeatedly emphasized, discrimination itself . . . perpetuat[es] ‘archaic and stereotypic notions’” incompatible with the equal treat­ ment guaranteed by the Constitution.

While not pellucid, this passage appears to say that Thomas would have afforded Morales-Santana only incomplete relief because it would have preserved the gender-based discrimination that he complained of. By contrast, the majority afforded Morales-Santana meaningful relief by eliminating the unlawful discrimination.


At this point, it’s time to start asking some critical questions.

First off, was the majority right that it had to reach the merits in order to afford Morales-Santana adequate relief? After all, it’s unsettling to think that Morales-Santana obtained relief by preventing other people from obtaining citizenship. Ian expressed a version of this intuition, arguing: “There is not a single human being whose life will be made better because of this opinion.” Yet the idea that discrimination is inherently harmful underlies many of the Court's doctrines. And the majority redressed that injury, thereby plausibly improving someone’s life.

Or did it? Again, the Court’s leveling-down remedy was only “prospective.” So there are many people who have obtained citizenship based on an assertedly discriminatory law, and they will continue to enjoy the benefits of that discrimination. Morales-Santana knows this. So perhaps the discrimination he suffered is ongoing, in which case he would have been denied complete relief even under the majority’s approach. If that’s right, how could the Court justify making its remedy merely prospective?

Instead of directly answering that question, the Court cited briefs filed by the United States. The relevant passages are likewise spare, but they seem to make two points. First, people who have benefitted from the special rule have engendered reliance interests—an understatement if there ever was one. Second, offering only a prospective remedy would minimize disruption and so leave Congress greater freedom to fashion its own solution.

These arguments are the kind of points made to justify a stay of the Court’s mandate or limitations on a grant of injunctive relief. But the Court did not purport to impose a stay or injunction. Rather, the Court’s analysis is merely precedent within the context of Morales-Santana’s petition for review of his removal. So the Court is blurring categories when it says its decision has a “remedy” component. In effect, the Court is viewing its reasoning as akin to a declaratory judgment that adjudicates the rights of non-parties.

What’s more, the Court itself appears to have blurred the boundary between judgments for injunctive relief and merely precedential opinions. In a kind of catch-all decretal sentence, the Court indicated that the decision below was affirmed in part, reversed in part, and remanded. As Will has pointed out, however, this disposition is surprising, for the lower court had ruled in favor of Morales-Santana’s citizenship and granted his requested relief. So, what part of the lower court’s judgment was affirmed?

The Court’s decretal language may simply have been imprecise. Or perhaps the Court wanted to affirm out of a sense of courtesy to the lower court. In a couple places, it seems that the majority opinion (authored by Justice Ginsburg) goes out of its way to be respectful of the Second Circuit panel decision, such as by pointing out that the lower court "correctly" ruled on the merits. Granting a symbolic partial affirmance might have been part of that effort.

But it seems more likely that the Court meant to affirm the lower court insofar as it had found an equal protection violation, thereby establishing a binding precedential rule. An analogy might be drawn to Camreta v. Greene, which vacated “part of the Ninth Circuit's opinion,” thereby treating a precedential ruling as though it were a judgment. So in both its reasoning and its decretal sentence, Morales-Santana seems to have conflated its treatment of judgments and of precedent.

It’s also worth noting two other considerations that may have informed the Court’s choice of remedy, even though they weren’t discussed. First, Justice Scalia helped propound the idea that courts lack authority to extend citizenship as a remedy—a position canvassed and ultimately rejected by the Second Circuit below. Second, if the Court had made the level-down remedy retroactive, the result might have violated the constitutional rights of the people induced to rely on the government’s promise of citizenship.

With so many controversial considerations swirling around, the Court may have deliberately curtailed its reasoning, hoping to do rough justice today while enjoying wiggle room tomorrow. At that, at least, the Court likely succeeded.

Posted by Richard M. Re on June 13, 2017 at 08:14 AM in 2016-17 End of Term | Permalink | Comments (1)

The Judgment in Morales-Santana (SCOTUS Symposium)

Howard and Ian have both posted about today's opinion in Sessions v. Morales-Santana, in which the Court held Section 309(c) of the INA unconstitutionally discriminatory, but then held that the remedy was to apply the stricter rule across the board ("leveling down," or what Ian calls "the mean remedy") rather than the more lenient rule ("leveling up"). (And here's Asher Steinberg with thoughts on implications for the travel ban.) I have given some thought to the leveling down/leveling up problem, and once tried to write an article about it, but I ended up shelving it in part because the problem was too hard.

For now, though, I have a more basic question about the judgment in the case. Justice Ginsburg's opinion ends "The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion." The Second Circuit, for its part, had concluded that "Morales-Santana is a citizen as of his birth," and reversed and remanded the Bureau of Immigration Appeals. But what part of the Second Circuit's judgment, exactly, did the Supreme Court actually affirm?

Normally the Supreme Court affirms in part and reverses in part when the lower court's judgment extended to two separate claims, and got one of them right. Here, so far as I can tell, there is only one bottom-line claim -- whether Morales-Santana is a citizen or not -- though there are two different legal questions on the way to answering it.

To be sure, the Supreme Court agreed with part of the Second Circuit's opinion (the part holding the statute unconstitutional) but it seems to disagree entirely with its judgment. The Second Circuit reversed the BIA. The Supreme Court held that the Second Circuit should have affirmed the BIA on alternate grounds. (And as the Supreme Court sometimes says, it reviews "judgments, not opinions.") So shouldn't the Supreme Court have just reversed the Second Circuit, and if not, what part of its judgment (as opposed to its opinion) did the Court affirm?

One possibility is Mark Tushnet's suggestion that the Court is actually requiring the executive branch to exercise prosecutorial discretion in favor of Mr. Morales-Santana if possible, but nobody else seems to share that reading of the opinion and I don't think I do either.

Another possibility is that the Court thinks that "holding a statute unconstitutional" is somehow a separate part of the judgment, something that can be affirmed separate and apart from any actual constitutional claim or remedy that is sought in the case. I don't think that's how federal courts work, but it is a conception of judicial power I see floating around sometimes.

A third possibility is that the opinion was forged in compromise, and it was important to some members of the Court to get "affirmed" somewhere into the judgment line, even if it wasn't clear why.

The fourth, and most likely, possibility is that I am missing something.


Posted by Will Baude on June 13, 2017 at 12:51 AM in 2016-17 End of Term | Permalink | Comments (4)

Monday, June 12, 2017

SCOTUS Symposium: Morales-Santana and the "Mean Remedy"

Today, the Court decided Sessions v. Morales-Santana, which is a case about who exactly is a citizen of the United States at birth. More specifically: If you are born abroad, and your parents are unmarried, and one of them is a citizen of the United States and one is not, are you a citizen? Until today, the law treated you differently depending on the sex of your citizen parent. If your father was a citizen, then (among other things) he had to be resident in the United States for five years before you were born for you to be a citizen; if it was your mother, it was a shorter period, just one year. The question presented in the case is whether this sex classification was constitutional. 

Because of the opinion assignments from November, it had been reasonably clear for some time that Justice Ginsburg had been assigned this opinion, and indeed on the merits she wrote for the Court an opinion that is perfectly consonant with what you might predict. No, said the Court, you cannot treat people differently depending on whether their citizen parent was a man or woman. Fair enough, and certainly seems right to me.

But! As Howard wrote about earlier today, the further question then arises: what do you do about this? Do you treat the children of citizen women worse, or the children of citizen men better? On First Mondays, back in November, co-symposiast Dan Epps and I referred to these as "the nice remedy" and "the mean remedy." Surprisingly, at least to me, today the Court elected the "mean remedy": children born to citizen mothers will, henceforth (more on that in a second), be worse off. A child born abroad to a non-citizen father and a citizen mother will not be a citizen unless that mother satisfied the longer residence requirements. The upshot is that Morales-Santana loses, and will be removed from the United States, because his father was a few days short of the required residence requirements.

There is a lot to dislike about the remedy portion of this opinion, which I think is an early contender for the worst thing Justice Ginsburg has ever written for the Court. Let me just pick out a couple of things.

1. Statelessness. One of the government's major justifications for the difference in treatment was the avoidance of statelessness for children—that is, to avoid a situation where a child would not be a citizen of any country. The government argued without contradiction that there were many states that "put the child of the U. S.-citizen mother at risk of statelessness" because they did not provide "for the child to acquire the father’s citizenship at birth." Yes, says the Court: but there are also "formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child."

In many countries, for example, a woman cannot "assign nationality to a nonmarital child born outside the subject country with a foreign father." In others, women who are citizens of such countries cannot even  "transmit their citizenship to nonmarital children born within the mother’s country." (Emphasis mine.) True—but the Court's remedy then makes this problem even worse by making it harder for children of U.S.-citizen mothers to be citizens. There is no evident appreciation in the Court's opinion for this fact. The practical consequence of the decision will absolutely be to worsen the problem of statelessness, something that is nowhere acknowledged in Justice Ginsburg's opinion.

2. Prospectivity. When the decision was handed down, I was immediately alarmed for the fate of the many, many people who have enjoyed citizenship at birth through their mothers, and whether their citizenship would be in jeopardy. What happens to the person whose mother was resident in the United States for 2 years when they were born (perhaps a long time ago), and who has lived their life as a citizen ever since? Deportation? This was an especial worry because the BIA recently decided Matter of Faldoun, in which the agency concluded that a person born outside the United States—even one who has been treated as a citizen—must always prove his citizenship in deportation proceedings, even if they have valid documentation of citizenship, and is vulnerable to later collateral challenges based on the facts or law.

The Court's opinion, however, addresses this worry in what is literally the last operative sentence of the opinion. Until Congress proscribes a different rule, the Court says, the "five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers." (Emphasis mine.) Now, why would that be? Prospectively, that is? The usual rule is that a court opinion construing the meaning or validity of a civil statute is "retroactive," in the sense that the court is simply announcing what the law has always been; there are a variety of exceptions to this principle, some more sensible than others, and perhaps they ought to apply here. Yet the Court says not one word about why the remedy is to be prospective—I suspect because it is a pure kludge, a price exacted by members of the Court who could not live with the cruelty of retroactivity but not elaborated upon because other members of the majority did not want the point labored.

It is not as clean a solution as it seems. What does "prospectively" mean, for one thing? Does the Court mean the rule is to be applied to children who are born after today? To people who have not yet been adjudged citizens in some final-ish court or agency proceeding? What of a person who was born 25 years ago to a citizen mother who cannot satisfy the new rule, and who has held a passport his entire life, but who commits an offense in 2018 that would render an immigrant removable. Is his removal a "prospective" application of Morales-Santana? I can see arguments both ways, and there is absolutely nothing in the Court's opinion to help sort the matter out.

3. The Gentler World of Thomas and Alito. In concurrence, Justice Thomas writes (joined by Justice Alito) that he agrees the Court cannot afford the relief Morales-Santana wants, and so would decide nothing more than that—he would skip, in other words, the merits holding. In a strange way, this would leave many immigrants better off: because Justice Thomas does not want to reach the merits, and because it is hard to imagine who would have standing to challenge the (now-unlawful) grant of citizenship to a person on the basis of his mother's citizenship, there are a lot of people who will be deported from the United States in the years to come who would have remained if Justice Thomas had his way.

On the whole, the opinion left me (as might be clear) with a bad taste in my mouth. It is a symbolic victory, and perhaps a principled one, but an unmitigated material rout. There is not a single human being whose life will be made better because of this opinion, and many people whose lives will be worse. Its crucial operative portion is utterly unexplained and will spawn a great deal more litigation; it is, through and through, a disappointment.

Posted by Ian Samuel on June 12, 2017 at 05:04 PM in 2016-17 End of Term | Permalink | Comments (5)

SCOTUS Symposium: Remedies and constitutional litigation (updated)

I do not teach or write in Remedies, except to the extent that basic remedial principles arise in more general Civ Pro or § 1983 work. Even in that context, I had not considered the special problems of ensuring equality through an injunction. In the First Amendment context, it is easy: Stop enforcing the prohibition on nude dancing or leafletting on the sidewalk and let the plaintiff have nude dancing in his bar or leaflet on the sidewalk. When the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone. And that depends on statutory design.

This was the problem for the Court in today's decision in Sessions v. Morales-Santana. Federal law must provide rules for when to accord citizenship at birth to children born outside the U.S. where one parent is a citizen. The law imposes on the citizen parent a five-year (two years since age 14) pre-birth residency requirement in order for the citizen parent to transmit citizenship at birth to the child. And that rule controls three situations: Married parents where the father is the citizen; married parents where the mother is the citizen; and unmarried parents where the father is the citizen. The statute then frames an exception to that rule for unmarried parents where the mother is the citizen, who only must have lived in the U.S. for one year pre-birth. The majority held that this less-favorable treatment for unmarried fathers violated equal protection.

But then what?

Morales-Santana was born in the Dominican Republic to a U.S. citizen father and a Dominican mother; the father was 20 days short of satisfying the statutory requirement for transmitting citizenship at birth. What Morales-Santana wanted from the Court was to apply the unmarried-mother rule to unmarried fathers, which his father satisfied, and which would make him a citizen at birth.* He would get that relief if the Court followed its ordinary equal-protection approach of extending the benefit (one-year residency) to the disadvantaged person. But the Court could remedy the equal protection violation a different way: Eliminate the favorable treatment to the differentially treated group (unmarried-mother citizens) and subject everyone to the five-year/two-year rule. That eliminates the equal protection problem, but does not make Morales-Santana a citizen at birth or entitle him to a suspension of removal.

[*] Morales-Santana was trying to avoid deportation as a result of some state criminal convictions.

The Court chose the latter, because the former would be inconsistent with congressional intent and the structure of the law and would disrupt the statute. The rule for unmarried-mother citizens is framed as an exception to the general rule, suggesting that Congress saw the five/two residency rule as the norm. And if the Court extended the one-year rule to unmarried-father citizens (Morales-Santana's preference), it would have produced a system in which married parents were treated less favorably than unmarried parents, itself raising constitutional problems. And the Court believed that Congress would not have wanted all parents (married and unmarried, mother or father) subject to the one-year rule, otherwise Congress would have made one year the rule, not a one-provision exception.

But does the Court ordinarily look to groups not before the Court in creating remedies? The provisions for married parents are in 8 U.S.C. § 1401, while the provisions for unmarried parents are in § 1409. So the Court could have said the equal protection problem is in § 1409, extended the favorable rule to all, then worried about the equal protection problems as between § 1401 and § 1409 in a later case. But that still left the problem within § 1409, in which the provision for unmarried-father citizens was in (a) and for unmarried-mother citizens was in (c) and written as an exception to (a) ("Notwithstanding the provision of subsection (a) of this section . . .").

Update: From Mark Tushnet at Balkinization:

[M]y initial reaction is that that argument is incomplete, because it doesn't take account of the Court's statement that, pending a statutory revision, the "Government must ensure that the laws in question are administered in a manner free from gender-based discrimination." What could that mean? My (relatively uninformed) take is this: Where (a) the gender-based provision would have immediate legal consequences (as in triggering Morales-Santana's eligibility for removal), and (b) the law gives the government discretion in administering the law (for example, discretion to suspend removal), that discretion should be exercised in a way that would eliminate the legal effects of the gender-based discrimination. So, in short, if there's discretion to suspend Morales-Santana's removal, he should get to stay in the United States.
Mark quotes from p.2 of the slip op., the end of the Introduction. But at the end of the body of the opinion (p.28 of the slip op.), the Court says "[i]n the interim, as the Government suggests, § 1401(a)(7)'s now five-year requirement should apply prospectively to children born to unwed U.S.-citizen mothers." It seems to me that means the government is free to remove Morales-Santana, because he is not a citizen-at-birth under the applicable provision. And that provision is no longer discriminatory; the discrimination was removed by the order/agreement not to treat as citizens at birth those born to unmarried-mother citizens. The Court did not order the government to suspend Morales-Santana's removal or order the lower court to consider that. And the provisions at issue do not allow of executive discretion.

Posted by Howard Wasserman on June 12, 2017 at 02:26 PM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

SCOTUS Symposium: Class certification, death knells, and finality

The Court at long last* decided Microsoft Corp. v. Baker. The Court was unanimous that plaintiffs, having been denied class certification, cannot seek review of that denial by voluntarily dismissing their individual claims.

[*] The Court granted cert. in in early 2016, before Justice Scalia died. It was held to this and argument delayed following Scalia's death, although argued in March, before the 8-person Court.

In Coopers & Lybrand v. Livesay in 1978, the Court held that denial of certification was not a final order for § 1291 purposes (it was "inherently interlocutory") and not reviewable under the Collateral Order Doctrine. The Court rejected the "death knell" doctrine, under which review would be allowed where the denial of cert was the death knell for litigation, because it would be financially untenable for plaintiffs to pursue small-value individual claims. Twenty years later, the Court responded with FRCP 23(f), which allowed for immediate review of cert orders (grants or denials), if the court of appeals agreed in its discretion to hear the issue. Plaintiffs  developed an additional strategy in the lower courts--voluntarily dismiss their individual claims to create a final judgment, appeal that final judgment while getting review of the cert order, then reinstate the individual claims if the court of appeals reversed on the cert decision.

Justice Ginsburg, writing for Justices Kennedy, Breyer, Sotomayor, and Kagan, held that there was no final decision to appeal. The decision was entirely purposivist--tied to the way this strategy would undermine the efficiency purposes of the Final Judgment Rule, the "careful calibration" reflected by FRCP 23(f), and the one-sidedness of a mechanism that allows plaintiffs but not defendants to seek review. Justice Thomas, joined by the Chief and Justice Alito, concurred in the judgment. In their view, the voluntary dismissal did produce a final judgment, because the claims in the case were gone. But it is not a final judgment that can be appealed under Article III, because any adversity was destroyed by the voluntariness of the dismissal. And the disputed issue of class certification is not a case or controversy that can support Article III adverseness, but only a means of taking advantage of a procedural mechanism.

It seems to me that both parts of the Court get this wrong. The majority did not respond to the real strategy at work here--creating a final judgment in the order dismissing the individual, which should be final, then raising the class cert as an interlocutory order merged into that final judgment and subject to review as part of review of the final judgment. The majority was right that the cert order was not final, but that was not what the order that the plaintiffs were trying to appeal. On the other hand, if the concurrence was right about Article III, what does that do to conditional pleas, which seem analogous to what the plaintiffs did here: Concede the merits, subject to being able to raise an underlying interlocutory issue on appeal. If adverseness is gone as to one, why not the other? I suppose the answer might be that a constitutional right is at stake in conditional appeals. But some conditional appeals are keyed to, for example, evidentiary rulings that do not implicate constitutional concerns.

A better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below. The majority's concern for the interaction with FRCP 23(f) and the policies of finality fit better with a prudential analysis might properly have led the Court to the same result, but in a way that fits better than using purpose to define finality. At the same time, if Article III does not categorically bar winners' appeals, it should not categorically bar appeals from voluntary dismissals.

Posted by Howard Wasserman on June 12, 2017 at 12:46 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (4)

SCOTUS Symposium: Is Patent Agency Adjudication Unconstitutional?

This morning the Supreme Court granted review in just one case, and limited its review to one question (three were presented in the petition): Oil States Energy Services LLC v. Greene’s Energy Group, LLC. It's yet another patent law case from the Federal Circuit, but it is no ordinary question presented--at least for patent and administrative law scholars (and constitutional law and federal courts scholars):

Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

The argument, which is marshaled by Allyson Ho and her team at Morgan Lewis, is nicely summarized at the outset of the petition:

Patents create property rights, protected by the Constitution. Once a patent is granted, it “is not subject to be revoked or canceled by the president, or any other officer of the Government” because “[i]t has become the property of the patentee, and as such is entitled to the same legal protection as other property.” McCormick Harvesting Mach. Co. v. C. Aultman & Co., 169 U.S. 606, 608-09 (1898).

In 2011, Congress passed the America Invents Act to combat what it perceived as inefficiencies in patent litigation. The Act allows the PTO’s Patent Trial and Appeal Board (the Board) to review existing patents and extinguish those rights in an adversarial process. See 35 U.S.C. §§ 311(a) & 318(a); Google Inc. v. Jongerius Panoramic Techs., LLC, No. IPR 2013-00191, Paper No. 50, at 4 (PTAB, Feb. 13, 2014). This is known as inter partes review. 37 C.F.R. § 42.100(a); H.R. REP. NO. 112-98, pt. 1, at 46-47 (2011). Inter partes review commences when a party—often an alleged patent infringer—asks the Board to reconsider the PTO’s issuance of an existing patent and invalidate it on the ground that it was anticipated by prior art or obvious. 35 U.S.C. § 311(b).

Historically, though, suits to invalidate patents would have been tried before a jury in a court of law. The Constitution thus provides patent owners with a right to a jury and an Article III forum. Inter partes review violates these rights. 

Unsurprisingly, the Solicitor General sided with the Respondent in filing a brief in opposition, arguing that the statutory scheme is constitutional as "[p]atents are quintessential public rights" and the process Congress has designed for agency review of its own decisions to issue patents is proper for the administration of a public-rights scheme. I can't wait for all the amicus briefs on both sides of the public-private rights debate, and I wonder if we'll see a full Hamburger assault on the modern administrative state, accompanied by witty (perhaps one-word) responses. 

The stakes are high here. This agency patent adjudication procedure has become extremely popular among those parties seeking to challenge patents, arguably because it is faster and cheaper than district court litigation--and also, perhaps, because the two paths under the statute are not mutually exclusive, such that patent challengers can pursue both options (with some limitations) to invalidate patents.

The numbers speak for themselves. As of last fall, the Patent Trial and Appeal Board (the agency that adjudicates these claims) had received over 5,000 petitions for inter partes review since starting to hear such claims in 2012 (shortly after the American Invents Act was enacted in 2011 to provide this adjudicatory authority to the agency). Indeed, the Federal Circuit, the court of appeals that has near-exclusive jurisdiction over patent appeals, now hears more patent appeals from the PTAB than from the district courts. 

I would expect this agency adjudication path to become even more popular after the Supreme Court's decision this Term in TC Heartland LLC v. Kraft Foods Group Brands LLC, which interpreted the patent venue statute to require that lawsuits only be brought in districts where the defendant corporation resides--i.e., its State of incorporation. In other words, we should see far fewer patent lawsuits being litigated in a small town in East Texas (a venue patent plaintiffs have found to be very favorable) and more cases being filed in federal district court in Delaware and arguably even more patent challengers opting for agency adjudication.

Selfishly, this cert grant could not have come at a better time. Last year the Duke Law Journal held a terrific symposium on the intersection of patent law and administrative law, which I had the opportunity to attend and pen a short response regarding Chevron deference to PTAB statutory interpretations. I write a fair amount about agency adjudication, including the annual ABA administrative law developments chapter on agency adjudication with ACUS Executive Director Matt Wiener, and I've become just fascinated by the PTAB's adjudicatory procedures. In fact, Melissa Wasserman and I are currently working on a project--tentatively entitled The Lost World of Agency Adjudication (yes, this is a nod to Dan Farber and Anne O'Connell's fabulous article The Lost World of Administrative Law)--that takes a closer look at the PTAB. In this paper, we will draw substantially from Michael Asimow and the Administrative Conference of the United States' terrific work on the rise of agency adjudication outside of the Administrative Procedure Act and will situate the PTAB adjudicatory process within administrative law’s larger movement away from APA-governed formal adjudication and toward formal-like adjudication outside of the APA. 

In all events, I hope to blog more about the merits of this case later this month. For now, I'd  flag Part III of Justice Thomas's 2015 dissent in B&B Hardware v. Hargis Industries, in which he expresses constitutional concerns about a somewhat similar agency adjudication institution (the Trademark and Trial Appeal Board). Note that he is the only member on the current Court who expressed such concerns then, with only Justice Scalia joining him. Yet with today's grant we have at least four Justices who are interested in this related constitutional question.

Posted by Chris Walker on June 12, 2017 at 11:38 AM in 2016-17 End of Term | Permalink | Comments (0)

SCOTUS Symposium: Summary Reversal in Virginia v. LeBlanc

The Supreme Court released a new batch of opinions today, and these are a bit more interesting than the ones last week.  We have Justice Gorsuch's first opinion in Henson v. Santander, about the FDCPA; a big case about class actions in Microsoft v. Baker (one of the cases that kept being put off after Justice Scalia's death); a significant equal protection decision in Sessions v. Morales-Santana; and Sandoz v. Amgen, a case involving some complicated FDA issues.  Particularly interesting to me, though, was a summary reversal in Virginia v. LeBlanc, which involves an interesting follow-on question from Graham v. Florida. Basically, Graham held that juvenile defendants who didn't commit homicide can't receive life without parole; instead, they are entitled to "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." But the Court didn't decide in Graham what that "meaningful opportunity" looks like exactly, and it hasn't provided further clarification (yet). So lower courts have been working that through in Graham challenges brought by juvenile non-homicide offenders.

LeBlanc is one of those follow-on cases. The defendant, a Virginia prisoner, was serving a life without parole sentence for a rape he committed at age 16. He challenged his sentence under Graham, and lost in the state courts; a state trial court concluded that he had a "meaningful opportunity" for release: though Virginia had abolished parole for offenders like LeBlanc, it has a geriatric release program that enables older inmates to get out of prison if certain conditions apply, and the state court found that this program satisfied Graham. On federal habeas review, the Fourth Circuit concluded that the state courts erred, and that the geriatric release program wasn't enough to satisfy Graham. Today, the Supreme Court unanimously reversed that decision. My thoughts after the jump.

The opinion is pretty straightforward, and in my view right. Not because it's totally clear that Virginia's geriatric release program is an acceptable procedure under Graham, but because of the significant restrictions on federal habeas review for state prisoners. Under AEDPA, federal courts aren't supposed to contradict state court decisions denying relief unless those decisions unreasonably apply clearly established federal law. Here, it's at least a hard and open question whether Virginia's procedure satisfies Graham; even if the best answer is that it doesn't, it's not unreasonable for a state court to conclude otherwise. 

I think there is one fair criticism of LeBlanc, although it's not exactly a criticism on the merits. LeBlanc was a summary reversal, where the Court just decides the case on the basis of the certiorari filings. The Court does a handful of these a year, probably no more than a dozen. While I have no problem with the Court using its power to summarily reverse when appropriate, the Court seems to prioritize certain issues over others. As symposium co-participant Will Baude has shown, the Court has been eager to summarily reverse in cases where lower courts misapplied AEDPA by granting habeas relief. The Court has also been pretty eager to reverse in cases that denied qualified immunity to police-officer defendants. While there are potentially good reasons for the Justices to use their energies in this way, the problem is that the Court, as Will explains, doesn't explain why it is using its resources as it does. And that creates a possible inference that the Justices aren't applying an evenhanded standard ("summarily reverse if the decision below is really really wrong") but instead just think errors in one direction are more important than others. Justice Sotomayor herself recently accused her colleagues of being inconsistent in the qualified immunity context, noting the "disturbing trend regarding the use of this Court’s resources" that it has "not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force" while it "rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases." 

The objection, to be clear, doesn't go to the merits of the Court's decisions summarily reversing; most of them seem right on the law and perhaps even uncontroversially so. The objection is that by only summarily reversing for certain kinds of errors but not others, the Court subtly pushes the law in one direction without explaining what it's doing. I don't think LeBlanc makes that problem worse. But it is yet another state-on-top AEDPA reversal.  So it may signal that, with Justice Gorsuch aboard, the Court's summary reversal practices aren't changing anytime soon. 

Posted by Daniel Epps on June 12, 2017 at 11:35 AM in 2016-17 End of Term | Permalink | Comments (4)

SCOTUS Symposium: Gorsuch's first opinion

My tentative prediction that Justice Gorsuch would write Perry v. MSPB was dealt a non-fatal blow today when Gorsuch wrote Henson v. Santander, a case involving the scope of the Fair Debt Collections Practice Act. As per tradition, it was a short (11 pages), easy, unanimous decision. Gorsuch may still write Perry--he almost certainly will have multiple opinions from the fourteen-case April sitting. But the chances went down a bit.

[Update on further consideration: During Perry arguments, Gorsuch seemed to question Kloeckner v. Solis, a unanimous 2012 decision (authored by Justice Kagan) holding that some MSPB decisions should be challenged in district court. Might he have convinced four Justices to overrule Kloeckner? Or at least to reject its application to a slightly different context? And might the Court be divided on the point, triggering a dissent from Kagan? If so, it might explain why Henson came out first--not only because it got done more quickly because he did not have to await a dissent, but because the practice is to release the easy, unanimous case first.]

Posted by Howard Wasserman on June 12, 2017 at 11:02 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, June 07, 2017

SCOTUS Symposium: Even More on Assignments

I'm enjoying the recent posts on the assignment power by Howard and Ian, as well as Steve's interesting post about the purpose of majority opinions. I confess to not being as troubled by the current arrangement as Ian is, though.  Ian asks a number of skeptical questions about the current system for assignments, in which the senior-most Justice has the assignment power; he wonders why it works that way, and whether the system could be designed differently.  I very much agree with Ian that the assignment system is "a product of choices, and we should at least ask whether the choices that have been made are the right ones." But here I think there isn't a huge amount to be gained by changing the rules. A few thoughts after the break.

  1. Why Assign Opinions? Ian asks why there should be an "assignment" at all. Why not just let the majority figure that out on their own on a case-by-case basis? I agree with Ian that such a system would probably work fine. But I don't see any argument that it would be better. You'd have to have additional discussion with each case about who would write (which means less time debating the merits). But figuring out how to spread the workload among the Justices can be a bit of a complicated LSAT logic puzzle, given that not everyone is in the majority for not every case. Having a rule about who gets to assign helps reduce the administrative burden of this complex coordination game.

    In many cases, it's just easier to arbitrarily let somebody decide rather than having to debate the decision from first principles. Anyone who has tried to arrange dinner with a group of friends should know this well. Rather than having an endless about which Sichuan place is the best, or whatever, the best strategy is usually to just declare that you'll defer to X person's choice and leave it at that. Maybe that person won't make the choice you would have made, but you avoid all the wrangling and intense debate about Yelp reviews and all that. 

    Now, I might be more troubled about giving one person the assignment power more or less arbitrarily if I thought the ability to assign was a big deal.  If it's a really significant power, then why should the Justices agree to let that power be distributed based on a somewhat arbitrary rule? Maybe the administrative complexity of debating assignments would be worth it. But Ian's fourth question—about how majority opinions can be "lost" or "stolen"—reveals why I don't think the assignment power is ultimately that consequential. "Assigning" an opinion to Justice X just means that Justice X gets to draft something for other Justices to read; if it's broader or narrower than what was discussed at conference, the other Justices can demand changes, refuse to sign on, and/or draft opinions concurring in the judgment.

    To be sure, the assignment power does matter—sometimes there are Justices who would have signed either a broad or narrow opinion, and so the person who has the power to decide who'll write the first draft gets to shape what the opinion of the Court looks like. In the past, some Chief Justices have been seen as abusing the assignment power; there are some stories in The Brethren about how Chief Justice Burger would play games that frustrated the Associate Justices. But the other Justices have weapons; they can, as noted, refuse to cooperate if the opinion gets assigned to someone who isn't going to write something that really captures the views of the Conference.

  2. Why Seniority?  Ian also wonders why the assignment power is a privilege of seniority.  Here, too, I'm mostly fine with the current system—with one rather significant exception. In general, I think on a court where all the Justices sit for life, distributing privileges by seniority is sensible. By providing a decision rule, it avoids ego-brusing fights that could damage collegiality in an institution where everyone has to work together in relatively close quarters for the rest of their professional lives. And as decision rules go, seniority is pretty fair and neutral: every Justice will eventually earn more seniority, and so every Justice (except for, say, one appointed unusually late in life) can expect to enjoy the privilege at some point in his or her career. If, as I believe, it's simplest to let one person decide these things, deferring to the most senior person seems a defensible method. That justice might not make the best decision, but the more junior justices will get their chance in turn.

    Of course, there are some situations where things work out a little unfairly: where two justices who are ideologically aligned and are also appointed very close in time, the slightly more senior of the two will end up getting a lot more assignment power than the junior one. As Howard notes, in a world where Hillary Clinton won, Justice Sotomayor would have ended up with a lot of power to assign liberal majority opinions; Justice Kagan, despite being appointed only a year later, would have missed out. But that isn't a problem I'm particularly worried about, even if it might be annoying to the more junior Justice in question. 

    I said, however, that I think there is one big exception to my view that the current seniority-based system works well: The Chief Justice. By tradition, the Chief Justice is senior to the rest of the Justices, even if he joined the Court more recently than any of them. And so the vagaries of when the Chief Justice happens to die ends up mattering more than it should. There hasn't been a Chief Justice appointed by a Democratic President in more than 60 years. I don't see a good argument for letting Justices appointed by one party have a monopoly on the assignment power for that long—even if I think that power isn't a huge deal, it still matters. 

    There are lots of ways to solve that problem. One would be to say that the Chief Justice doesn't have seniority over the Associate Justices in terms of opinion assignments. A more radical solution would be to change how the Chief Justice gets designated. Although Article III requires life tenure, and though Article I presupposes the existence of a Chief Justice, I don't see anything in the text of the Constitution that requires that the title "Chief Justice of the United States" stay with one justice for life. Is there any reason to think that Congress couldn't say that Justices sit for life, but that the Chief Justice will be chief for only a set period?  That's how it works on the courts of appeals--the Chief Judge is the senior-most active circuit judge under 65, who then sits for a 7-year term.  Is there any reason to think that system wouldn't be constitutional at the Supreme Court?  I don't see a good defense for having one person be the head of the whole judicial branch for life, especially given the problem of strategic retirements (If another Democrat will get to appoint the Chief Justice in the next half century, it will likely only be because of an unexpected death). I'm sure there is scholarship on this question, though, which I haven't read. 

  3. Assignment of Dissents. Ian wonders why dissents aren't formally assigned like majorities. Here, my sense of the facts on the ground is different: my memory is that the senior-most Justice in the minority does assign dissents, though not through a formal memo. Dissents are a little different because often more people write just for themselves, but my sense is that seniority still matters, at least in situations where there is a big dissent meant to capture the views of three or four justices. 

Posted by Daniel Epps on June 7, 2017 at 12:27 PM in 2016-17 End of Term | Permalink | Comments (3)

SCOTUS OT16 Symposium: A few more thoughts on majority opinions

Ian’s post on the assignment power, building on Howard’s earlier post, asks why opinions of the Court have to be assigned at all, rather than just traded off among the Justices. This brings to mind a more general question: why do we even need an “opinion of the Court”? Or, to put it another way, how much effort should the Justices invest merely in order to “get to five”?

The Court probably isn’t about to return to seriatim opinions—though in certain ways that might be nice. From a separation-of-powers perspective, seriatim opinions are plainly the Justices’ opinions about the law. That’s distinct from the Court’s judgment, which is legally binding under Article III. (See Will’s helpful article on the subject.) By contrast, the unified structure of an “opinion of the Court” can suggest, in my view misleadingly, that the opinion itself is the binding law.

These worries aside, I’ve read enough seriatim opinions to understand the desire for a single authoritative statement from the Court. Law professors may revel in a sea of opinions, but practitioners don't want to sort through a pile of separate documents to identify the propositions that the Justices held in common. Issuing a single opinion, agreed to by a majority, helps courts, lawyers, and the public figure out what the Justices think.

Requiring five votes, though, doesn’t itself generate agreement on the law. If the Justices irreducibly disagree, they aren’t going to generate a single opinion with a single, coherent, well-reasoned rationale. Their disagreement is going to show up somewhere, and the only question is where to push the bump under the rug. In fact, insisting on a single majority opinion might make things worse.

How does the Court respond to disagreement? One approach is to secure five votes by turning the opinion’s reasoning into mush. Compromising on the rationale to get a majority opinion means compromising all the interests that make opinions for the Court useful—e.g., producing a fact-bound opinion effectively good for that case only, or articulating standards so vague that they fail to provide effective guidance for the future.

Another approach looks like Adarand Constructors v. Pena, 515 U.S. 200 (1995):

O’Connor, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of Scalia, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by Rehnquist, C. J., and Kennedy and Thomas, JJ., and by Scalia, J., to the extent heretofore indicated; and Part III-C was joined by Kennedy, J. Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

There are at least three problems with this approach. The first is that it’s occasionally incomprehensible. The second problem is that it distorts the precedential value of the opinions. Law students almost always miss when the label changes from “Opinion of the Court” to “Opinion of Burble, J.” at the top of the page. So the unjoined portion of the otherwise-majority opinion typically gets undue attention, far more than it deserves (or than is paid to a plurality opinion or a concurrence with similar numbers), simply because it comes from the assigned author’s pen. The third problem is that it’s very hard for the Justices to write an effective opinion that’s only partly for the Court. Only the rare stylist is capable of writing an opinion that’s equally coherent with or without some large chunk in the middle. No matter what, Part VII always depends in part on the existence of Part V; and if only Part VII has a majority, it’ll be just as difficult for other courts to apply it in Part V’s absence.

So my proposal is as follows. Majority opinions and individual opinions serve different functions, and the Court should help readers distinguish these functions by separating them at a structural level. In the courts of appeals, this is sometimes done through multiple opinions by the same author: my old boss Judge Williams would occasionally write a concurrence to his own majority opinion, to better reflect which propositions enjoyed majority support and which were frolics of his own. Similarly, Justice Holmes would occasionally author majority opinions dubitante, as in Javierre v. Central Altagracia, 217 U.S. 502, 508 (1910):

Notwithstanding these considerations, I should have preferred to affirm the decree, but, as my reasons have been stated to my brethren, and have not prevailed, it is unnecessary to repeat them now.

Decree reversed.

If the Court doesn’t want to go that far, it could accompany the maze of opinions in complex merits cases with a per curiam opinion, every sentence of which would be guaranteed to enjoy five votes. That per curiam opinion wouldn’t need to state a coherent rationale for the judgment; by assumption, there is no such rationale that enjoys majority support. Instead, it could say things like “Four Justices reach this result because of X, while two others do so because of Y.” It would resemble an extended, integrated version of the syllabus—but it would carry the imprimatur of the Justices, not just of the Reporter of Decisions. As a result, any court or lawyer wanting only to know “what does this case require of me tomorrow” could consult the per curiam, while anyone interested in assessing the Justices’ disagreements or making predictions about future cases could look to the concurrences and dissents.

When the Court decides a case, we need to know what a majority is likely to affirm or reverse, and also what they’ll be thinking when they do. It’s best for everyone if these two interests happen to line up. But if not, the second-best alternative may not be a patchwork attempt at a five-vote opinion. Justice Scalia once hotly criticized what he saw as a “specious unanimity”; and whatever one might think of his opinion in that case, it’s fair to say that broader majorities can add to confusion as well as reduce it. If the Justices take different views of the law, it’s often better for the legal system that their disagreement be confronted and understood.

Posted by Stephen Sachs on June 7, 2017 at 12:09 AM in 2016-17 End of Term, Constitutional thoughts, Judicial Process, Symposium | Permalink | Comments (8)

Tuesday, June 06, 2017

SCOTUS Symposium: A few more thoughts on opinion assignments

A quick follow-up on Howard's post on the assignment power. There are actually a number of interesting questions worth asking about the opinion-assignment process, and this is as good an occasion as any to raise them.

  1. Should opinions be "assigned" at all? A Supreme Court majority is made up of five to nine people (usually). Those people agree on the bottom line. Is it really necessary that someone have the formal power to designate a person who will write for the group? Would consensus on that question really be hard to reach in a meaningful number of cases? Imagine, in other words, that the five Justices in the Cooper majority talked among themselves for ten or fifteen minutes about how they might propose to write the opinion, whether they wanted to, how busy people were, and whose proposal seemed generally likely to be agreeable to the group. I am strongly tempted by the view that this would work just fine.

  2. Why is the assignment power derived from seniority? Even if you think that someone should have the power to assign opinions, why should length of tenure on the Court be how that's earned? It's not that hard to think of other systems. For one, the members of the majority could just decide who they wanted to decide that question—one vote on the outcome, in other words, and then a further vote among the majority to award the assigning power. If that's too complicated, then why not have people take turns? (Imagine the assignment were made by the member of the majority who had assigned the fewest opinions that Term, ties broken by seniority.) Maybe it would be good to get people in the habit of making assignments or enjoying the privilege of being able to "keep" a case.

  3. Why aren't opinion assignments discussed more? Even if you accept the view that it's useful to have a single person coordinating the majority of the Court's workload (which is, I think, the most compelling practical justification for the current system), should there nonetheless be more discussion of who's going to get what among the Justices themselves? I remember, as a law clerk, waiting for the assignment list to come around on Friday from the Chief's chambers, and often being surprised (sometimes pleasantly, sometimes not) at what our chambers had "gotten." But why is that how it should work? Why should there be surprises on that list, in other words? Of course, assigners (usually the Chief, fairly often others) are free to solicit input from people about which assignments they'd like, and so forth. But is it best to have that solicitation be one-to-one? Should it be a group conversation at Conference?

  4. What does the ability of someone to "lose" or "steal" a majority tell us about the system? The funny thing about opinion assignments is that they're really nothing more than an opportunity to take the first shot at writing for the Court. If a Justice circulates an opinion and members of the majority turn out not to like it, the fact of having been "assigned" the opinion is not going to save them. Similarly, if a separate concurrence in the judgment attracts a majority of the Court, it's the law—whether the person was assigned the opinion in the first place or not. (There are reports that this happened during the Citizens United litigation.)

  5. Why don't dissents get assigned? Unlike majority opinions, dissents aren't formally assigned in the same way. There may be informal coordination among the people who do not expect to join the Court's judgment (more along the lines of the system I imagined above) but there's no "dissent assignment" sheet that goes around. True, dissents don't need to get five votes. But as discussed above in (3), the assignment doesn't ensure that the proposed majority will, either. And many of the other practical justifications for formal opinion assignments apply with equal force to dissents—coordination of workload, for example. Yet dissents get written just fine. To what extent does that cast doubt on the need to assign majorities?

We take the opinion assignment process as it presently exists basically for granted, in other words; but it isn't. It's a product of choices, and we should at least ask whether the choices that have been made are the right ones.

Posted by Ian Samuel on June 6, 2017 at 03:54 PM in 2016-17 End of Term | Permalink | Comments (3)

SCOTUS Symposium: Mootness and Munsingwear in the Travel Ban Litigation

I've been following with interest the debate over when and whether President Trump's revised travel ban expires, thus potentially mooting the Fourth Circuit's decision (on which the Solicitor General has petitioned for certiorari). Joshua Matz raised the problem of potential mootness last week; Marty Lederman has a detailed post on the issue arguing that the Court should deny the Government's cert petition because the ban expires imminently; Mark Tushnet offered some thoughts along somewhat similar lines. Will Baude has a thoughtful response; and now Marty has replied in turn.

I'm not writing to weigh in on the merits of this dispute, although I'll confess to finding Marty's analysis somewhat more plausible than Will's as a reading of what the executive order actually said (as opposed to what it perhaps should have said; better lawyering on the front end in the White House could have avoided this potential obstacle to SCOTUS review). Instead, what I'm interested in is what the Court might or should do if it agrees with Marty that the ban is, or soon will be, moot. Marty argues that the impending mootness is a reason to deny certiorari. But as Leah Litman flagged, it's possible that mootness could lead to a different result: vacatur of the Fourth Circuit's decision under the Munsingwear doctrine. (Ian Samuel and I also discussed this briefly in yesterday's episode of First Mondays). 

Under Munsingwear (about which now-Judge Pattie Millett has a helpful introduction from a years back here), the Court will sometimes vacate a decision by a lower federal court where the dispute has become moot on the way to the Supreme Court.  The Court will do this in order to prevent the now-moot lower court decision from having legal effect: vacatur "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance."

Let's assume for present purposes that the dispute is, or shortly will be, moot. (So for that reason, I'm ignoring the distinct question of whether the Administration could be said to have engaged in "voluntary cessation" preventing mootness).  Would Munsingwear require vacatur? It's a complicated question that I'm still thinking through, but here are my thoughts so far.  (I've had some helpful e-mail exchanges with Marty and Leah that have shaped my thinking on this.).  In my view, Munsingwear vacatur is possible here. Here are a couple legal wrinkles I've worked through.

  1. Voluntary Action. The Court made clear in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership that Munsingwear vacatur orders aren't normally appropriate when "the party seeking relief from the judgment below caused the mootness by voluntary action." There, the losing party's agreement to settle the case "constitute[d] a failure of equity" that deprived it of "equitable entitlement to the extraordinary remedy of vacatur." An important question is thus whether here the Government (the losing party that would benefit from vacatur) caused the mootness by its voluntary action, or whether instead this is a case where the mootness is a case where mootness is the result of "happenstance." On the one hand, any mootness is the Government's fault: to the extent that Executive Order 13780 was written in such a way that, as Marty argues, the entry ban expires in 90 days from the effective date of the order—without regard to whether the ban is stayed by a court—the Government could have avoided that problem through better drafting.

    Yet even if that's so, I'm not sure whether that failure is really the same as, say, a party's voluntary decision to settle a dispute. This is an equitable inquiry, so it's a bit fuzzy. But the fact that the government could have done something differently to avoid potential mootness in the face of a subsequent legal challenge strikes me as pretty different from a party's voluntary action after the adverse legal decision that makes the dispute moot.  Maybe the best argument (suggested to me by Leah) is that the government could have tried to move even more quickly to avoid mootness—maybe seeking Supreme Court review by certiorari before judgment before the court of appeals had ruled. But that seems like a stretch. Also helpful is Alvarez v. Smith, which suggests that whether the party or parties who mooted the case was trying to avoid Supreme Court review is relevant to whether the mootness is the result of "voluntary action" precluding vacatur or mere "happenstance" permitting it. Here, I don't think there's a good argument that the executive order was written as it was in order to preclude Supreme Court review, so my inclination is to think of this as "happenstance." 

    One interesting side note that provides some guidance about when executive action can deprive the government of entitlement to seek vacatur: in Munsingwear itself, the party that should have sought vacatur, but slept on its rights, was the United States—after a district court decision in a case where the Government was the plaintiff finding that the defendant hadn’t violated a price-fixing regulation, the government decontrolled the commodity in question and then failed to seek vacatur of that district court decision, making it res judicata between the parties.  In Bancorp, the Court in a footnote hinted that the unstated premise in Munsingwear that the Government would have been entitled to vacatur was wrong:

    "We thus stand by Munsingwear's dictum that mootness by happenstance provides sufficient reason to vacate. Whether that principle was correctly applied to the circumstances of that case is another matter. The suit for injunctive relief in Munsingwear became moot on appeal because the regulations sought to be enforced by the United States were annulled by Executive Order. See Fleming v. Munsingwear, Inc., 162 F. 2d 125, 127 (CA8 1947). We express no view on Munsingwear's implicit conclusion that repeal of administrative regulations cannot fairly be attributed to the Executive Branch when it litigates in the name of the United States."

    I don't think this is decisive here, however; in Munsingwear, the mootness was caused by an executive order after the adverse lower court decision was rendered. Here, the mootness is caused by the executive order that is itself the very subject of the injunction at issue, so I think it's a bit different. 

  2. Purposes of Vacatur. A second question is whether vacatur is really appropriate here given that the party seeking vacatur is the United States.  Munsingwear suggests that the purpose of vacatur is to "clear[] the path for future relitigation of the issues between the parties." Often, a losing party wants the lower court judgment vacated to avoid the possibility that that judgment will be used to collaterally estop the losing party in future suits. But the United States, unlike most parties, is not subject to nonmutual collateral estoppel, at least on constitutional issues. One might object that there's less need for vacatur in light of that fact: there's no risk that the Fourth Circuit's decision can be used to estop the government from arguing that a similar entry ban is, say, motivated by anti-Muslim animus in a future case.

    I don't think this objection is at all decisive, however. The government would, I think, still be bound by collateral estoppel in a later case brought by the same plaintiffs. But even if that isn't true for some reason, there are other legal consequences of the Fourth Circuit's ruling that would persist if the opinion isn't vacated. The en banc opinion would remain circuit precedent, binding as a matter of stare decisis, in future cases in the Fourth Circuit. And the Court's decision in Camreta v. Greene implies that a Munsingwear vacatur is appropriate where it serves to prevent the creation of unreviewable precedent that would be binding in future cases.  (There, the Court vacated the part of the Ninth Circuit's ruling that held that the defendant's conduct violated the constitution, in part because that rule would "govern future cases.").  Here, I think it wouldn't be a distortion of the Munsingwear rule to vacate the Fourth Circuit's decision to prevent it from serving as precedent, irrespective of whether it has any collateral estoppel effect at all. 

My final thought is more practical than legal. Assuming Marty has the better of the argument on the mootness point, I still find it hard to believe that the Court would simply deny cert. in Trump v. IRAP. The issues seem too big, and the Fourth Circuit's injunction is too broad, for me to believe that six Justices (since only four are needed to grant cert.) would let the decision stand without further scrutiny (although that's not to say I think the Court couldn't uphold the ruling in the end, after full briefing and argument; just that letting it stand via a cert. denial seems implausible).

Munsingwear vacatur, however, could be an intriguing compromise that just might generate consensus on the Court. It would let the Court avoid wading into treacherous constitutional waters—I can't imagine many Justices are eager to address the question of how much legal weight President Trump's statements deserve, especially in light of his ill-considered tweetstorm yesterday morning.  But it would also avoid giving the impression that the Court approved of a nationwide injunction about which the conservative Justices will, I suspect, have serious concerns. Chief Justice Roberts has over the years cobbled together a number of compromises that at the very least kicked difficult constitutional questions down the road (think, for example, of Northwest Austin Municipal Utility District v. Holder, where the Court managed to dispose of the case in a way that deferred the issue of the constitutionality of § 5 of the Voting Rights Act for several years—see also Richard Re's great piece on this approach by the Roberts Court). It wouldn't surprise me to see something similar happen here. Whether that would be at the cert. stage, or after cert. was granted and the case was fully briefed and argued, I'm not sure; but, like Will, I think further briefing on the mootness question is in the offing, one way or another. 

Cross-posted at Take Care.

Posted by Daniel Epps on June 6, 2017 at 11:00 AM in 2016-17 End of Term | Permalink | Comments (2)

SCOTUS Symposium: Thoughts on the assignment power

Last month's decision in Cooper v. Harris (declaring invalid two North Carolina congressional districts as impermissibly race-based) was notable for the rare lineup: Justice Thomas joined Justices Ginsburg, Breyer, Sotomayor, and Kagan. Less mentioned was that Thomas, as senior-most Associate Justice in the majority, assigned the opinion (draw your own conclusions from Thomas assigning the opinion to Justice Kagan, while Kennedy, placed in the same position, tends to keep the opinions for himself). This is similarly rare: Thomas generally agrees with the Chief (and if not the Chief, prior to last February, Justice Scalia), more-senior Justices who would assign opinions.

I am interesting in writing about the assignment power, particularly for Justices other than the Chief. I would like to look at those who have had long tenures as senior-most Associate Justice (either on the Court or on a segment of the Court) and had either a lot or a little assignment power in that role. I also am interested in the rare assignments, such as Cooper.

For now, I want to address a different point: In December, I argued that the loser in Mitch McConnell's successful Merrick Garland gambit (besides Never-Justice Garland) was Elena Kagan, who lost a chance to be the Justice Brennan of a new liberal-leaning majority. But also losing out on the exchange was Justice Sotomayor, who lost the chance to frequently wield the assignment power (query whether she would have relied on Kagan the way Chief Justice Warren relied on Brennan). Assume Hillary Clinton won and the following: a) Garland is confirmed; b) Ginsburg and Breyer retire within Clinton's first two years. By OT 2018, we have the following Court: Chief, Kennedy,* Thomas, Alito, Sotomayor, Kagan, Garland, Clinton I, Clinton II. That is a 5-4 Court on politically divisive cases--with the four most senior Justices in the minority and Sotomayor the senior-most Associate Justice in the majority, assigning many of these opinions.

    [*] For purposes of this exercise, Kennedy could have retired as well.

Posted by Howard Wasserman on June 6, 2017 at 09:31 AM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, June 05, 2017

SCOTUS Symposium: Answering a longstanding question

In Water Splash v. Menon, the Supreme Court finally resolved the question of whether the Hague Service Convention's provision allowing litigants to "send judicial documents by postal channels" allows service by mail or merely allows delivery by mail once proper service of process has already been made under other provisions of the convention.

On May 22, the Court unanimously (except for Justice Gorsuch, who was not sitting) held that the convention authorizes service by mail in any country with a very important caveat: the receiving state must not have objected to service by mail and indeed must affirmatively authorize mail service in litigation:

"To be clear, this [holding] does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not 'interfere with . . . the freedom' to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law."

The Court began with a textual analysis, noting that even if "send" should be interpreted to mean something different than "serve" (which was used in other provisions), "[t]hat would not imply that [it] must exclude service. Instead, "send[ing]" could be a breader concept that includes service but is not limited to it."  The Court also found "[t]hree extratextual sources . . . especially helpful" in interpreting the provision: the Convention's drafting history, the consistent views of the Executive Branch over the last half-century, and the views of other signatories to the convention. It concluded that all sources weighed in favor interpreting "send" to include initial service.

It may seem like a minor question, but any litigator who handles transnational cases has probably come across the issue--the question has been litigated for more than thirty years and has been a frequent topic for scholarly writing. The circuits were sharply divided--the Second, Fourth, Seventh, and Ninth Circuits had held that the Hague Convention allowed service by mail, whereas the Fifth Circuit, Eighth Circuit, and district courts in the Third and Eleventh Circuits had held that it did not. The issue had arisen in more than 120 reported cases.

Water Splash may not be the most exciting case of the term, but having a definitive answer will make make a lot of litigators' lives easier and will save on litigation costs. At least until more parties start litigating the question of whether email counts as a "postal channel" for purposes of service...

Posted by Cassandra Burke Robertson on June 5, 2017 at 06:46 PM in 2016-17 End of Term | Permalink | Comments (0)

SCOTUS Symposium: More on standing, intervenors, and Laroe Estates

I covered Town of Chester v. Laroe Estates for SCOTUSBlog and my recap is here. Since that forum is intended to be descriptive, this is my normative take.

The Court leaves in place what Andrew-Aaron Bruhl (who filed an amicus brief in the case) calls the one good plaintiff rule--so long as one plaintiff has standing, other plaintiffs (including intervenor-plaintiffs) can go along for the ride. Town of Chester limits that to plaintiffs and intervenors who assert identical claims for identical relief. The problem (as Aaron argued in an email and I agree) is that all relief is plaintiff-specific--a remedy for A is different than a remedy for B, even if they both want the same thing. So either the Court's own rule is universal or it is calling on lower courts to draw an impossible distinction in practice.

With respect to damages in this case, the Court distinguished two remedies: The first is Laroe asking for damages directly from the Town for the value of its property interest, which would require standing. The second is Laroe joining Sherman to ask for a single fund of money from the Town, after which Laroe and Sherman would fight over their portions of that fund (which would not). The latter theory is that Laroe and Sherman seek the same thing from Chester--$ 6 million, the value of the regulatory taking of property in which they both have an interest; thus, only one need have standing to get the entire pool from the Town. Who between Laroe and Sherman owns how much of that $ 6 million is between them.

The "one good plaintiff" rule arises most often in actions challenging the constitutionality of a law and seeking injunctive relief; courts do a standing inquiry for one plaintiff, then stop. But the plaintiff-specificity of the remedy remains, which is why Aaron argues everyone must have standing. Enjoining enforcement of a law so A can engage in some conduct (attend an integrated school, hold a rally, get married, not buy health insurance) is a different remedy from enjoining enforcement of a law so B can engage in the "same" conduct himself. This decision does nothing to end that practice. Courts generally understand this type of injunction as the equivalent of a single pie for each party to put to its own use, rather than a single order requiring something from the defendant to each plaintiff. (I am interested in this point (and in Aaron's article) because it ties into questions about the scope of judgments, the permissibility of universal/nationwide injunctions, and the process of constitutional litigation).

Ironically, Justice Gorsuch's testy exchange with respondent's counsel (this was the second argument on Gorsuch's first day on the bench) surrounded discussion of this point. Asked by Gorsuch to identify when an intervenor seeks different equitable relief from the plaintiff, counsel tried to explain that it depends on the scope of the injunction, implicitly invoking one-good-plaintiff cases; Gorsuch became increasingly frustrated by counsel's refusal to answer his non-"trick" question. But Gorsuch did not seem to recognize the real problem--that an injunction should never be so broad that a person can benefit from it as a judgment without having standing.*

[*] For purposes of this point, I bracket my Fletcherian insistence that standing is merits. [Update: On this tangent, Aaron responds with a great point: "One good plaintiff" exists because standing is not merits. Courts never would have developed a doctrine that says "so long as one plaintiff has a successful claim on the merits, we will grant relief to other plaintiffs even though they don't have successful claims on the merits." But because it is a jurisdictional threshold, courts have been ironically lenient on it (as long as someone can pass the heightened threshold).

Posted by Howard Wasserman on June 5, 2017 at 02:23 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)