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)

Monday, June 19, 2017

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: 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 (21)

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)

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: 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: 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)

Sunday, June 04, 2017

SCOTUS OT16 Symposium: The Code and the Law

My last post promised a few quibbles with the Court's opinion in BNSF. Here's one: the Court misdescribes the statute's text.

The opinion quotes the statute as follows:

To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on [45 U.S.C.] § 56, which provides in relevant part:

“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” 

These particular words were never enacted by Congress. Instead, on April 5, 1910, a different statute was adopted, with text later published at 36 Stat. 291:

Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.

Congress amended the last sentence in 1948, ending the sentence at the comma and moving the rest into 28 U.S.C. § 1445. But the other edits in § 56—replacing "Act" with "chapter," and "circuit court" with "district court"—weren't made by Congress. When the old circuit courts were abolished in 1911, Congress didn't change all the old statutes mentioning them; it just told everyone to read those unchanged statutes "to refer to * * * the district courts" instead. And it never replaced "Act" with "chapter" at all.

So who wrote the words in the opinion? The answer is the staff at the Office of Law Revision Counsel, an office in the House of Representatives. They edit the real statutes that go through bicameralism-and-presentment (most of which are published in the Statutes at Large) and then compile them into titles of the United States Code. Congress occasionally reenacts those edited compilations as the real law. But often the Code isn't really law; as Will Baude recently put it, it's just "a helpful edited collection that tries to reflect what the Statutes at Large actually add up to." That's why the Code's unenacted titles are only "prima facie" evidence of the text, while the Statutes at Large are "legal evidence" of what you'd find in the original enrolled bills deposited in the National Archives.

Usually these distinctions don't matter much. Who cares whether a statute actually says "district courts," so long as we're legally required to read the text as if it did? But sometimes the difference does matter—such as when the compilers leave a statutory provision out of the U.S. Code for four decades, or when Congress writes a new law but forgets to change the enacted title it overrides.

And sometimes, as Tobias Dorsey explains in a great article, courts misunderstand what a statute does simply because they're looking at a final edited version, not the bills enacted over time. So when BNSF's reply brief based an argument on "[t]he statute's reference to jurisdiction 'under this chapter,'" its conclusion wasn't necessarily wrong—but its premise should have rested on words written by Congress, not by a staff office making chapter divisions on its own.

Two last points. First, courts can help remind the parties (and themselves) that the Code is not the law. Right now, the Supreme Court's Rule 34.5 requires parties to cite to the U.S. Code, even for unenacted titles. Rules like this could instead distinguish enacted titles from unenacted ones—separating the real law from what Dorsey correctly calls the "Cliffs Notes" version.

Second, remembering that the Code isn't the law reminds us of something useful about legal interpretation: that it's about law, and not just about texts. When we talk about "the text of the statute," we're often talking about the text as amended—that is, as generated by a particular process, involving a variety of different legal judgments. Some of those judgments are easy, as when Congress spells out what it's amending and how. But some are quite difficult, as when there are discrepancies in an enrolled bill, or when a particular provision may or may not fall within the scope of an unclear repeal. Similarly, when we talk about "the text of the Constitution," we aren't talking about a single organic text, but a patchwork of more than a score of separate enactments, adopted over hundreds of years. That's entirely correct as a legal matter, because Article V made those subsequent enactments "valid to all Intents and Purposes, as Part of this Constitution." But you need to use legal reasoning to get there, not just textual interpretation. (This is especially true for the Fourteenth Amendment, whose validity may involve reference to the de facto government doctrine or the laws of war.) "What's the text?" isn't only a textual-integrity question, of the kind we might refer to philologists or historians; often the question we're really asking is "what's the law?" But to answer that question, we really ought to get the words right in the first place.

Posted by Stephen Sachs on June 4, 2017 at 10:05 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine

One of the decisions that I am eagerly awaiting is Sessions v. DimayaDimaya, a non-citizen, faced removal under the Immigration and Nationality Act because he had been convicted of an “aggravated felony.” The Immigration and Nationality Act defines “aggravated felony” in part by reference to 18 U.S.C. 16, a criminal statute that provides a number of definitions.  Language in 18 U.S.C. 16 is very similar to language that the Supreme Court held to be unconstitutionally vague in a 2015 case, Johnson v. United States.  As a result of this similarity, the Ninth Circuit (and a couple of others) held that 18 U.S.C. 16 is unconstitutionally vague.

The reason I am so interested in Dimaya is that the Supreme Court’s recent vagueness cases don’t make a whole lot of sense, and I’m hoping that the opinion in Dimaya will bring some clarity to this area of the law.

To be fair to the current Court, vagueness has never been a particularly consistent or well-developed doctrine.  But we have seen two opinions in as many years from the Court that have muddied the water even further.  The first of those decisions was JohnsonJohnson extended the vagueness doctrine beyond criminal statutes that define crimes to statutes that set punishments.  Previous Supreme Court cases had suggested that the vagueness doctrine did not apply to pure sentencing statutes—a point that the government made in its brief—but the Johnson majority simply extended the doctrine without explaining why.  This lack of explanation is troubling because, as I explained in a recent paper, once you extend the doctrine to sentencing, then many features of the criminal justice system arguably raise due process problems.

The second problematic vagueness decision came earlier this Term in Beckles v. United StatesBeckles involved a challenge to a federal sentencing guideline that included language that was identical to the language that was deemed unconstitutionally vague in Johnson.  But the Beckles Court held that the vagueness doctrine did not extend to the federal sentencing guidelines.  The Beckles decision could be criticized on a number of grounds (fodder, I suppose, for another post), but it also further muddied the water surrounding the vagueness doctrine.  One of the reasons that Beckles Court gave for not allowing vagueness challenges to the federal sentencing guideline was that advisory sentencing guidelines greatly resemble fully discretionary sentencing systems. Because no court has ever held that a system that gives judges no sentencing guidance is impermissibly vague, the Beckles Court concluded that a system that gives some guidance must be acceptable.

While a majority of Justices felt that the discretion given to judges was enough to dismiss the constitutional challenge, this reasoning raises more questions than it answers.  The similarity between advisory guidelines and unfettered sentencing discretion is not obviously a reason to dismiss vagueness challenges.  After all, the Supreme Court has repeatedly held that the danger of arbitrary and discriminatory enforcement created by “unfettered discretion” is the main reason why vague statutes are unconstitutional.  Thus, one would think that the more discretion is present, the more due process scrutiny ought to apply.

Perhaps Dimaya will bring some clarity to the vagueness doctrine.  Or perhaps the Court will dodge the vagueness issue by concluding that, because this challenge arose in the context of an immigration case, the vagueness doctrine does not apply with equal force.  I’m interested to find out.

Posted by Carissa Byrne Hessick on June 4, 2017 at 02:39 PM in 2016-17 End of Term, Criminal Law | Permalink | Comments (0)

Friday, June 02, 2017

SCOTUS Symposium: When will the travel ban cases become moot?

As predicted, the United States has filed a cert petition and stay application in Trump v. IRAP, the Fourth Circuit litigation about the validity of his administration's six-country travel ban. On the schedule that the United States proposes, the case would be briefed over the summer and argued this fall at the Supreme Court.

But commentators such as Marty Lederman and Mark Tushnet have suggested that the case either will soon be moot, or could be made moot without the entry ban ever going into effect. That might be right, but I'm not so sure, and because I found it tricky I thought I'd think through the possibilities here.

Possibility One: The challenges will become moot on June 14, because the text of the order says that its effective date is March 16, and June 14 is 90 days after March 16. This assumes that the order's start date and duration are unchanged by any of the court orders against it. This is Marty's position.
Possibility Two: The order's "effective date" has been delayed by the court orders preventing it from going to effect. The order will become moot 90 days after it goes into effect, so the order will not become moot as long as it is stayed.
Possibility Three: The order's "effective date" is unchanged by the court orders, but it will not expire until it has been in effect for 90 days. The upshot is the same as in Possibility Two: The order will not become moot as long as the entry ban is stayed.

Marty argues that the answer is Possibility One:

Section 2(c) of the Order provides that “the entry into the United States of nationals of [the six designated] countries be suspended for 90 days from the effective date of this order.” And Section 14 of the Order specifically provides that the “effective date” of the Order was 12:01 a.m. on March 16. Accordingly, the E.O. itself provides that the suspension prescribed in Section 2(c) ends at 12:01 a.m. on Wednesday, June 14, whether or not any courts have enjoined its implementation in the interim.

But I am not so sure. I am inclined to think that Possibility Three and Possibility Two are both plausible, and that Possibility Three is probably the most natural interpretation of the order. Here's that reading:

The order's effective date is March 16. Section 2(c) of the order says that entry of designated nationals will "be suspended for 90 days from the effective date of this order." Normally, that would result in the order lasting for 90 days, because a 90-day suspension normally takes 90 days. But because the relevant parts of the order have been preempted by a federal court judgment, it will take longer than 90 calendar days for the 90-day suspension to run. Or to put it more simply: The order will last until it has done what it says it is going to do, namely suspend entry for 90 days.

I think Marty's reading would be much stronger if the order contained an explicit expiration date of "June 14." And it would be at least somewhat stronger, if not as much, if the order said something like "this order shall expire 90 days after its effective date." But the order doesn't quite do either of these things. Instead it announces that entry is suspended for 90 days, and so it is most natural to think that the order expires when entry has indeed been suspended for 90 days. No suspension, no expiration.

Now, Marty is also quite right to point out that the United States seems to have implicitly taken his position in at least one legal filing. But until we know more, I am not convinced that is dispositive, because it doesn't seem to be the United States' position now, and I doubt that the filing satisfies the requirements for something like judicial estoppel. I'm not positive about any of that, but it isn't obvious to me that the cases will all become moot in 12 days.

Finally, one other set of things that puzzles me, apart from the best reading of the order, is what kind of standards apply to this mootness question:

  • Should we think of this as a question of textual interpretation, analogous to interpretation of an agency regulation? And if so, does an analogy to Auer deference apply, giving the president's deference as to the meaning of his own order?
  • Is this more like a "voluntary cessation" case, where the question is whether it is "absolutely clear" that the suspension "could not reasonably be expected to recur" after June 14?
  • Or is the order itself a distraction for purposes of justiciability? Perhaps the real mootness question is whether the United States keeps asserting its willingness to block entry after June 14, order or no order. On this view, Marty's textual analysis of the order might be relevant to the lawfulness of that executive action under Section 212(f) of the INA, without controlling the justiciability question.

I suspect we'll see further briefing on this question, and perhaps the court will simply add this mootness question to the case if it hears argument in the fall.

[Cross-posted with trivial modification from The Volokh Conspiracy]

Posted by Will Baude on June 2, 2017 at 08:18 PM in 2016-17 End of Term | Permalink | Comments (9)

Wednesday, May 31, 2017

SCOTUS Symposium: Good hombres and legal positivism

I think this sort-of relates to Paul's definite contribution to the SCOTUS Symposium. In light of Paul's model, how should we understand the Ninth Circuit's denial of a stay of removal in Ortega v. Sessions, particularly Judge Reinhardt's concurring opinion?

Ortega came to the United States unlawfully as a teen; he has been here 28 years, gotten married, had 3 children (one of whom is in college), and become a successful businessman--he is, as Judge Reinhardt said, a "good hombre." Ortega has been under a stay of removal since 2014, until the government changed its position on the stay in March and ordered him removed (absent the stay, that happens next month. Reinhardt concurred in the denial of the stay, arguing that the court lacks the authority to grant it, even if it is not fair and just. He concludes with a flourish:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

Assuming arguendo we agree with Reinhardt that this decision is unjust, what do we think of the decision generally and Reinhardt's opinion specifically? Is this a form of resistance or domestication--the hope that, even though the administration "wins" and its opponent "loses," the court's words of criticism might either calm the administration down going forward or rouse an opposition? Alternatively, this presents a third option for the courts--compliance, in that the administration's policies move forward, even if it is grudging compliance with a chip on the court's shoulder that might rally domestication or resistance.

Either way, it supports Paul's argument that the conversation must be about more than who wins or loses--if all the administration cares about is winning, the court's words are meaningless. They begin to sound in Fuller's critique of legal positivism and how that concept requires courts to validate immoral actions in the name of positive law.

Posted by Howard Wasserman on May 31, 2017 at 03:50 PM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

SCOTUS Symposium: Justice Gorsuch on personal jurisdiction

Cassandra discusses then-Judge Gorsuch's opinion in Dudnikov, finding jurisdiction in Colorado under the Effects Test based on a letter sent to California that affected the plaintiff's behavior and business in Colorado. Cassandra raised the possibility that the Effects Test was silently overruled in Walden.

I doubt Walden was a stealth overruling of Calder, but it did narrow it one respect: Whereas many lower courts had said that the test was satisfied if the defendant directed conduct at a state knowing it would affect the plaintiff there, Walden requires that intentional conduct be aimed at the forum, not only at the plaintiff (who happens to be in or from the forum). In other words, knowledge that the plaintiff is in or from the forum or might feel effects in the forum is not enough when conduct is undertaken elsewhere; the intent of the outside condct must be to hit the forum.

The question (which I have used as a hypo in class) is whether Dudnikov comes out the same way after Walden. The point of the cease-and-desist letter was to stop the plaintiff from doing things in CO. So did the defendant direct his conduct at Colorado in purposefully trying to stop the plaintiff's business there? Or did he only direct his conduct at California, with knowledge of effects in CO?

Posted by Howard Wasserman on May 31, 2017 at 09:31 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 30, 2017

SCOTUS Symposium: Thoughts on County of LA v. Mendez

I'm happy to be participating in this symposium, with a great group of co-contributors—many of whom are personal friends and all of whom I admire. I've been avidly reading PrawfsBlawg since it launched my 1L year more than a decade ago, so it's a treat to finally be contributing to it. Consistent with my scholarly fields, I'll be most interested in what the Court does in criminal law and procedure cases. But I'm also a general SCOTUS watcher; fellow guest Ian Samuel and I do a SCOTUS-themed podcast called First Mondays that I feel obliged to plug at least once here. 

For my first post, I'd like to offer some thoughts on County of Los Angeles v. Mendez, a decision today that concerns when officers can be held liable for injuries that follow from earlier constitutional violations. Here's how the case arose: LA County Sheriff's deputies were searching for a fugitive. Their search led them to a house; living in a shack behind that home were Angel Mendez and his partner, Jennifer Garcia (eventual plaintiffs, and the losing respondents at SCOTUS). Although there were some indications that the shack was used as a residence—and evidence in the record that the officers had been told that people were living in the backyard—the officers entered without a warrant and without knocking or announcing. Mendez and Garcia were sleeping inside as officers entered the property; immediately before the officers entered, Mendez had picked up a BB gun to move it.  Upon encountering Mendez holding the BB gun inside (which the officers mistakenly, though understandably, perceived to be a firearm), the officers fired 15 shots, seriously injuring both Mendez and Garcia. 

Mendez and Garcia sued and got a $4 million damages award; the Ninth Circuit upheld that award on the theory that the officers violated clearly established law by entering the shack without a warrant. The Ninth Circuit relied on the "provocation doctrine"--a theory that had arisen in the lower courts and which basically provided that if an officer's unconstitutional actions "provoked" a violent confrontation, that officer could be held liable for damages arising from an otherwise reasonable use of force. SCOTUS reversed in a unanimous opinion (sans Gorsuch, so 8-0) written by Justice Alito. As the Court explained, the provocation theory was impossible to square with the Court's caselaw on excessive force claims. Under Graham v. Connor, an officer's use of force that is otherwise reasonable under the relevant circumstances can't become unreasonable simply because of an earlier constitutional violation.

The Court's rejection of the provocation theory isn't at all surprising. The doctrine had been criticized in the lower courts; the doctrine seemed confusing and hard to cabin; and the plaintiffs themselves hadn't even defended it in their briefing. A somewhat more promising angle, though, had been the Ninth Circuit's alternative holding that the damages award was justified under the principle of proximate cause, on the theory that the shooting was the foreseeable result of the earlier constitutional violation (the warrantless entry). Here, too, the Court held the Ninth Circuit had erred: the Ninth Circuit had focused on the risks created when the "officers barged into the shack unnannounced," but this was a risk created by the officers' failure to knock and announce (a separate claim on which the Ninth Circuit had found the officers entitled to qualified immunity), not their failure to get a warrant.  On remand, the Ninth Circuit will get another shot at the proximate cause analysis "based on the deputies’ failure to secure a warrant at the outset." 

Here, too, the result isn't shocking. And the fact that the decision was unanimous, with nary even a concurrence, suggests that the opinion doesn't break huge amounts of new ground.  And I think the result is basically correct in light of existing doctrine and the way the Ninth Circuit opinion was written (i.e., not very well).  Still, there are two questions I'm interested in the wake of Mendez.

First, I think it's useful to take a step back and look at the larger picture of Fourth Amendment doctrine and how frequently it denies a remedy for seemingly avoidable wrongs. The doctrine is very granular, requiring courts to analyze an incident on a claim-by-claim (and essentially moment-by-moment) basis rather than analyzing the entire set of police actions as a whole.

Take Graham v. Connor—under that decision, courts are supposed to analyze whether an officer's use of force was reasonable based on the objective circumstances at the time force is applied. I think the problem that the provocation doctrine was created partly to solve is that the Graham analysis doesn't seem to leave a lot of room for consideration of the circumstances leading up to the use of force. Even if, say, police make a series of questionable decisions that lead them into a dangerous situation, courts tend to analyze damages claims based on a very narrow timeframe.

So—to model an example partly based on a pro bono case I worked on a couple years back—imagine that police choose to search a residence based on a questionable tip of drug activity; they decide to enter in force, at night, military-style, despite no reason to think that the occupants are dangerous; they fail to adequately knock and announce; one of the residents, fearful for his life and unaware that the people entering his house at the dead of night are police officers, comes to the door carrying a weapon; and the police shoot and kill him. So long as the officers reasonably fear for their lives at the moment is force is used, courts will tend to call that a reasonable use of force—even though many of the police choices that lead to that deadly confrontation seem decidedly unreasonable.

The larger problem this example is meant to illustrate is that Fourth Amendment analysis is often narrowly focused on isolated decisions made by individual officers at single points in time, rather than a course of decisions made by a law-enforcement agency as a whole. And that narrow perspective means that the law doesn't do nearly enough, in my view, to discourage dangerous police practices. (Seth Stoughton has written thoughtfully about this problem in the New York Times; see also his and Brandon Garrett's great recent article A Tactical Fourth Amendment.).

This approach to the Fourth Amendment is oriented around the perspective of the officer; the Court seems hesitant to put officers in a position of having to second-guess themselves at moments when they might reasonably fear for their lives. (See Graham's emphasis on "the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.").  Yet this officer-centered approach seems hard to justify if a goal of the Fourth Amendment is protecting "the people" and discouraging police actions that, at least viewed from a slightly less narrow perspective, seem pretty unreasonable.  And an officer-focused approach seems especially hard to justify in a world where officers are almost invariably indemnified when damages are awarded against them. 

Mendez certainly doesn't do anything to fix this problem. It does leave a slight window open for change: the plaintiffs had argued that Graham's totality-of-the-circumstances objective reasonableness approach should allow courts to consider "unreasonable police conduct prior to the use of force that foreseeably created the need to use it."  But I'm skeptical that the Court, especially now that Justice Gorsuch is on board, will ultimately endorse that approach. For the most part, Mendez will contribute to this problem, by emphasizing that courts need to break down a police encounter into its component doctrinal components, rather than asking a question like "could this shooting have been avoided by smarter choices?"

Second, I'm interested in what the Court might say about proximate cause analysis in the future. In theory, proximate cause should be able to solve some of the problems I worry about above. Even if, say, the plaintiff loses on an excessive force claim because an officer's shooting of a person inside his home is judged reasonable under Graham, it's possible that the victim could still recover under a different claim if that shooting was the foreseeable result of another constitutional violation—say, a failure to knock and announce.  In Mendez, the Court left the possibility open that the plaintiffs could still recover if the officers' failure to secure a warrant (though, as noted above, not the failure to knock and announce) proximately caused the shooting. 

But here, too, I see some trouble down the road for civil-rights plaintiffs. Justice Alito didn't mention it in Mendez, but as a Third Circuit judge he wrote about proximate cause in an influential opinion in Bodine v. Warwick. As he explained there, the "superseding cause" doctrine puts limits on proximate causation (cleaned up): 

[E]ven if the entry was unlawful, this would mean, under basic principles of tort law, that the troopers would be liable for the harm "proximately" or "legally" caused by their tortious conduct (i.e., by their illegal entry). See, e.g., Restatement (Second) of Torts §§ 431 and 871 cmt. 1 (1965 & 1979). They would not, however, necessarily be liable for all of the harm caused in the "philosophic" or but-for sense by the illegal entry. See, e.g., Restatement (Second) of Torts § 431 and cmt. a (1965). Among other things, they would not be liable for harm produced by a "superseding cause." See, e.g., Restatement (Second) of Torts §§ 440-453 (1965). And they certainly would not be liable for harm that was caused by their nontortious, as opposed to their tortious, "conduct," such as the use of reasonable force to arrest Bodine.

A simple hypothetical will illustrate the importance of these distinctions in a case such as this. Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is "no." The suspect's conduct would constitute a "superseding" cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See id. § 440.

Then-Judge Alito's hypothetical is pretty extreme, and I have no interest in arguing here that he's wrong about how the superseding cause doctrine would apply in those exact facts. But I worry that in future cases, that doctrine will be used to limit liability in cases closer to the borderline. To refer back to my hypothetical above—there are many scenarios where officers' failure to knock and announce leads directly to harm or death, because a surprised homeowner picks up a weapon out of self-defense without realizing that it is the police who are breaking down his door, and the police, seeing that weapon, shoot him. Such a case is quite different from the hypothetical in Bodine, where a home's occupant intentionally attacks and kills police officers. 

Yet my worry is that in such a case Justice Alito, and perhaps other members of the Court, would be just as willing to say that the homeowner's actions—even if premised on a mistake—count as a superseding cause, breaking the causal chain of proximate cause (Bodine says that officers "certainly wouldn't be liable for harm caused by . . . the use of reasonable force," and I think Justice Alito would think includes that a Graham-reasonable shooting). That would be unfortunate, in my view, because as the Court itself acknowledged in Hudson v. Michigan (and as Radley Balko has ably argued), one of the reasons we have a knock and announce requirement is that "an unannounced entry may provoke violence in supposed self-defense by the surprised resident." If so, proximate cause doctrine won't do much to solve the narrow-perspective problem that I flagged above. 

Posted by Daniel Epps on May 30, 2017 at 11:07 PM in 2016-17 End of Term | Permalink | Comments (13)

SCOTUS Symposium: More recusals

Leah flags the summary disposition in Jaffe v. Roberts, where all Justices but Gorsuch were the respondents on the petition and all were recused, leaving only Gorsuch to act on the petition. Below that is a second no-quorum affirmance in Arunga v. Obama, in which Kennedy, Ginsburg, Breyer, and Kagan were recused.

A quick Google search shows that Arunga is a serial crazy litigator, with past lawsuits against President Clinton, Mitt Romney, and the ACLU. So I doubt there was much comprehensibility or merit to the lawsuit. Still, I am curious why those four Justices were recused.

Posted by Howard Wasserman on May 30, 2017 at 02:10 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (3)

SCOTUS: A Big Day For Justice Gorsuch & The First Affirmance By An Equally Divided Court

Howard posed some questions to kick off the symposium on the Supreme Court's OT 2016. I'll start by half-seriously answering the question about what cert petitions I'm watching and why.

The petition I want to flag (which the Court also acted on this morning) is Jaffe v. Roberts.  The "Roberts" listed as the respondent in the case caption is Chief Justice John G. Roberts, Jr.  The other respondents in the case are Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, and former Justice Scalia.  The case challenges the Justices' failure to grant certiorari in a prior case filed by Mr. Jaffe.

This morning, the Court resolved the petition.  But because all of the Justices just listed are respondents in the case, they couldn't participate in its resolution.  And the order indicates that the Chief Justice and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor and Kagan took no part in the consideration of the petition.  That left Justice Gorsuch.  And he (acting as "the Court," per the order),  "affirmed the judgment ... with the same effect as upon affirmative by an equally divided Court."

Two other quick things to flag about the order and the case.  

One, today was the first day we got an opinion in a case in which Justice Gorsuch participated (BNSF Railway v. Tyrrell).  But we also got an affirm-by-an-equally-divided Justice Gorsuch opinion.  Who would have thought that Jaffe v. Roberts would be the first affirm-by-an-equally-divided Court opinion from OT2016?  

Two, the docket page lists the counsel in the case.  The counsel for respondents is (unsurprisingly) Acting Solicitor General Jeff Wall.  Wall clerked for Justice Thomas.  Is this the first case where a former clerk represented the Justice for whom he or she clerked?  (I haven't bothered to try and look up the answer to the question, but just wanted to pose it.)

Posted by Leah Litman on May 30, 2017 at 12:14 PM in 2016-17 End of Term | Permalink | Comments (0)

SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions

The Supreme Court issued four opinions today.  One of those opinions, Esquivel-Quintana v. Sessions, involves what seems like a relatively technical statutory interpretation question.  But behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress---issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.

Esquivel-Quintana involves a section of the Immigration and Nationality Act that identifies a conviction for an “aggravated felony” of “sexual abuse of a minor” as grounds for mandatory removal from the United States.  Petitioner had been convicted under a California statute that prohibits sexual intercourse with a minor who is more than three years younger than the perpetrator.  The law defines a minor as any person under 18.  Petitioner argued that this conviction should not make him eligible for mandatory removal because it does not fall within the “generic federal definition” of sexual abuse of a minor, which requires that the victim be younger than 16.  The unanimous Supreme Court agreed that Petitioner was not subject to mandatory removal, not because his victim was older than 16, but because the California statute would permit a conviction in circumstances even when the victim was 17.

Now, you might be asking yourself “what is a ‘generic federal definition’ of a crime, and where do you find such a definition?”  Those are excellent questions.  And the answers are less than satisfying.  There is no section of the U.S. Code where you can find “generic federal definitions” of crimes.  Instead, the generic definitions are common-law creatures that the courts have created in order to deal with the fact that Congress has written a number of statutes that rely on state-court convictions.  And because states define crimes differently, Congress does not specify which specific state criminal statutes trigger its federal laws.  Nor does Congress define the criminal conduct or elements that trigger the federal laws.  Instead it uses phrases like “sexual abuse of a minor,” leaving it to federal prosecutors and federal courts to sort out which state court convictions qualify and which convictions do not.  And, as you might imagine, sorting these things out is far from easy.  It leads to a lot of circuit splits, and we end up with a number of decisions from the Supreme Court on these types of issues every year.

If you take a step back and think about why Congress is writing such imprecise statutes, you’ll realize that it is because Congress is trying to expand the reach of its laws to capture information from state courts.  In recent decades, the federal criminal law has expanded.  The federal government has sought to regulate not only those people who commit federal crimes, but also those who are convicted of state crimes.  Federal law seeks to deport people who have committed state crimes, it prohibits people from possessing firearms based on state court convictions, and it uses those convictions to drastically increase punishment for people who are convicted of federal crimes.  As the federal government has increased its criminal law role, it has leaned heavily on state court convictions.  But states have written very different criminal laws.  These differences are traceable to the idea that each state faces different problems and has different priorities.  Congress’s decision to try to use those state laws as the scaffold for a nation-wide criminal law not only raises questions whether Congress is usurping the role of the states in shaping criminal law, but it also ignores the messy reality of state law differences.

These laws also highlight the limits of Congress’s power.  It is not easy for Congress to draft and enact legislation.  So it would be next to impossible for Congress to list all of the specific state statutes that it would want to trigger a federal law, and then to continuously pass legislation to update that list as states change their own laws.  But Congress’s decision to use imprecise phrases like “sexual abuse of a minor” raises its own problems.  Two Terms ago, in Johnson v. United States, the Supreme Court held that a portion of one of these federal laws was unconstitutionally vague.  A vagueness challenge to a similar law is pending before the Court right now in Sessions v. Dimaya

To be clear, the Supreme Court is not always hostile to federal laws that incorporate state court convictions.  And it often rules for the government in those cases even when a reasonable reading supports a defendant-petitioner.  But at least today we can add Esquivel-Quintana v. Sessions to the list of cases in which the courts have pushed back against these federal laws.

Posted by Carissa Byrne Hessick on May 30, 2017 at 11:57 AM in 2016-17 End of Term, Criminal Law | Permalink | Comments (1)

Before turning to today's merits cases . . . .

With four (albeit relatively short) merits cases today, I'm sure we will have plenty to read and talk about, but before I sit down to do that, I thought I'd offer a couple of quick if obvious answers to one of Howard's starting questions. "What pending cert petitions are you watching and why? Which do you expect the Court to grant?"

Here's one case I definitely expect the Court to grant -- the travel-ban case recently decided by the Fourth Circuit and still pending in the Ninth. The administration has already said that it will seek review. I know that the Solicitor General's grant rate is normally a "mere" 70%, but this strikes me as the kind of issue where the Court will feel an obligation to grant the United States petition, even without a split. I wouldn't even be surprised to see the petition filed in the next month, to obtain review before the issue is stale or moot.

Here's one case I don't expect to be granted: Masterpiece Cakeshop v. Colorado Civil Rights Commission, now relisted for the eleventh time. At this point, I'd be shocked if this meant anything other than at least one, and probably more than one, Justice writing opinions concurring in/dissenting from/respecting the denial of certiorari.

And while I have the floor on the topic of non-merits work, I can't help but point to an intriguing attorney discipline order issued today, D-2971, In the Matter of Christopher Patrick Sullivan:

Due to mistaken identity, the order suspending Christopher Patrick Sullivan of Boston, Massachusetts from the practice of law in this Court, dated May 15, 2017, is vacated and the Rule to Show Cause issued on that date is discharged.

 (Found via Kimberly Robinson on Twitter.)

On yesterday's installment of their podcast, Dan and Ian discussed attorney discipline orders, which Dan called "just the first pages of a story." This one sounds like it might be quite a story.

Posted by Will Baude on May 30, 2017 at 11:15 AM in 2016-17 End of Term | Permalink | Comments (4)

SCOTUS Symposium: General jurisdiction narrows further

I am glad we started our June symposium two days early, because the Court issued four of its remaining opinions, including BNSF R. Co. v. Tyrrell, one of two personal jurisdiction cases from the April sitting.

The question was whether a state court (in this case, Montana) can exercise jurisdiction over a FELA claim for an accident that occurred in another state. The Court unanimously (through Justice Ginsburg) held that FELA itself does not answer the question because the possibly relevant statutory provision did not speak to personal jurisdiction, but only to subject matter jurisdiction (making clear concurrent jurisdiction over FELA claims) and venue (for FELA claims in federal court).

The personal jurisdiction analysis therefore was covered by International Shoe. And here was see the same divide (Ginsburg for the Court, Justice Sotomayor dissenting alone) over the scope of general jurisdiction as in Daimler v. Bauman; Part III of the majority and all of the dissent are an in-miniature rehash of Diamler.

The majority reiterates several things: 1) General jurisdiction is where the defendant's contacts are so "continuous and systematic" as to be "essentially at home"; The "paradigm" of the essential home is the entity's principal place of business and state of incorporation; 3) there may be "exceptional" cases in which general jurisdiction will be available outside those two states; 4) a company doing business in many states cannot be home in all of them and the analysis must consider its in-state contacts in light of its overall activities in other states; 5) Shoe was a specific, not general, jurisdiction case, so any discussion of general jurisdiction there is dicta. The Court added something new: It pointed to Perkins as exemplifying a company essentially at home other than its state of creation and P/P/B, hinting (according to Sotomayor's dissent) that this exhausts the exceptional cases and only a similar set of facts* will qualify.

[*]Unlikely, as Japan is unlikely to invade the Philippines.

Thus, 2000 miles of track and 2000 employees in Montana is not sufficient to make BNSF essentially at home, where it is incorporated and has its PPB elsewhere and where it does similar amounts of business in other states.

The significance of this case in reaffirming the narrowness of general jurisdiction may not be clear until the Court decides Bristol-Myers. The narrowing of general jurisdiction has forced courts to find ways to expand when a contact "gives rise" or "relates to" a claim, thereby expanding specific jurisdiction.

Posted by Howard Wasserman on May 30, 2017 at 10:51 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS OT 2016 symposium

Thanks to Howard for kicking off the conversation.  As I mentioned, responding to Rick Hills, in the comments to Howard's post (!), I'm looking forward to Trinity Lutheran, in part for the Proust's-cookie-type reason that it reminds me of some (unsuccessful) cert. petitions that Michael Paulsen did, back in 1999, trying to get the Court to take up the "the Constitution does not allow states to discriminate against families that choose religious schools in the context of otherwise general benefits programs" argument.  I'm also curious to see what happens in Lee v. Tam and, in particular, what (if anything) the justices will say about the power of governments (including, say, state universities?) to regulate, discourage, punish, etc., "offensive" speech.  And, while I haven't thought much about parcels and takings since Bob Ellickson's Property class, I spend a fair bit of time with a Property Prawf, who tells me that the question in Murr v. Wisconsin -- "Whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes" -- is an interesting one.

Howard also asked the question that, I imagine, many of us who teach public-law subjects are getting from our Court-watcher-reporter friends, "Will Justice Kennedy retire?"  (Here is Dahlia Lithwick, suggesting that the Fourth Circuit's travel-ban opinion can be read as "a ransom note from the federal judiciary directed solely at Justice Kennedy.")  I, no surprise, have no idea, but I hope he does and that Justice Ginsburg does the same, the resulting political/partisan nastiness notwithstanding. I think this (at least, I think I think this) not (only) because I imagine their replacements would think about the law more like I do, but because I just don't think it's healthy or otherwise good for our rule-of-law aspirations for 80-years-old jurists (no offense!) to imagine themselves as, or to be regarded by us as, indispensable.  (For more on the "term limits for justices" conversation, see, e.g., this.)

Posted by Rick Garnett on May 30, 2017 at 08:22 AM in 2016-17 End of Term | Permalink | Comments (0)

Monday, May 29, 2017

Symposium Introduction: SCOTUS OT 2016

Welcome to the first (hopefully annual) PrawfsBlawg Symposium on the end of the SCOTUS Term. Our guests and regular Prawfs will be exchanging posts and talking to our readers and to one another about the final cases of the Term, as well as other issues relating to the Court.

I will get the conversation started with a few questions for consideration and discussion before the final month begins and we get into the flood of cases:

• By my count, there are 34 cases left to be decided. Which one(s) are you anticipating and why?

• Fourteen of those cases are from the April sitting, the only one in which Justice Gorsuch participated. Besides the obvious--no 4-4 splits--how do you anticipate Justice Gorsuch affecting the outcomes in these cases, compared with how they might have come out were the Court still short-handed? How does Gorsuch appear to have affected the Court's dynamics?

• What pending cert petitions are you watching and why? Which do you expect the Court to grant?

• Is Justice Kennedy going to retire at the end of this Term?

Feel free to start the month by discussing these and other issues not presented here.

Posted by Howard Wasserman on May 29, 2017 at 07:17 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)