Friday, May 27, 2016
Litigation financing and the First Amendment
I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiels funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.
[*] In discussing litigation financing, Grossi mentions public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.
Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.
Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.
But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).
[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.
[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.
Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.
Wednesday, May 25, 2016
Frank Easterbrook, the First Amendment, and the Chicago Cubs
My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.
And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."
Tuesday, May 24, 2016
Trusts, religious paraphenalia, and freedom of the church
I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.
My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.
Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?
Monday, May 23, 2016
The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.
Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.
Details (and spoilers) after the jump.
First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.
Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.
Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.
That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.
[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.
Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.
[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.
Friday, May 20, 2016
Money and departmentalism
Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.
[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.
And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.
But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?
Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.
Monday, May 16, 2016
Zubik, shadow dockets, and dispute resolution
It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.
And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.
First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.
Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.
Saturday, May 07, 2016
Roy Moore suspended, facing removal
The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.
The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.
I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.
I welcome comments from this with a background in Alabama judicial ethics.
Tuesday, May 03, 2016
"And a question everyone here should ask . . . " "Are you Canadian?"
I'm making this brief return to Prawfs (thanks Howard!) to plug an article by Christopher Schmidt and me on the issue of Senator Ted Cruz's eligibility to be president. The issue got a lot of play earlier in the primary season when Donald Trump said that Cruz's Canadian birth was a problem for the Senator's campaign, and numerous constitutional law profs weighed in on the issue. (See, e.g., Larry Tribe, Akhil Amar, Einer Elhauge, Eric Posner, Michael Ramsey.) The debate centered around originalism: would Cruz be eligible under an originalist understanding of the natural-born citizen clause? Tribe, Elhauge and Posner said no, while Ramsey said yes. Commentators debated the original understandings of the Constitutional language, as well as certain 18th Century English and American statutes -- but they also asked whether originalism was the appropriate constitutional interpretive method. Tribe, for example, argued that Cruz was ineligible under originalism but perfectly eligible under a "living constitutionalist" approach.
In our article "The Natural-Born Citizen Clause, Popular Constitutionalism, and Ted Cruz's Eligibility Question," Chris and I focus on the role of popular constitutionalism in the modern conservative movement and discuss the ramifications of a popular constitutionalist approach to the natural-born citizen clause. Drawing on Chris's terrific earlier work on the Tea Party and popular constitutionalism, the article makes the case that the popular understanding of "natural-born" would likely exclude Cruz from eligibility, as the common understanding has been that a candidate must have been born in the United States. However, Cruz's campaign has emphasized that this question is "settled law," and has looked to elite constitutional opinion to nail down the issue. In particular, an article by Neal Katyal and Paul Clement -- published in the Harvard Law Review Forum, and timed to come out just before Cruz's presidential announcement -- claims that Cruz is eligible, and that any other conclusion is "specious" and "spurious." Cruz has not left the clause's meaning open to voters, and he has not asked them to draw upon their "conservative constitutional principles" to decide whether he is eligible. On other matters, however, Cruz has been very much a popular constitutionalist -- to an underappreciated extent. Cruz's political campaign consistently refers to the people's role in defending the Constitution, and he has been a Tea Party constitutionalist since at least 2012, when he brought Sarah Palin and other Tea Partiers on board for his senate campaign. In fact, Cruz has even advocated for amending the Constitution to allow for retention elections for Supreme Court justices.
Although the national media has largely moved on from the question of Cruz's eligibility, the issue still burbles below the surface. The snappy comeback from a Trump supporter yesterday shows that Cruz's Canadian birth still matters to some. If Cruz fails to get the Republican nomination, there are myriad reasons why voters might have settled on a different candidate. But popular constitutionalism in action might be one reason that voters cast their ballot for someone else.
Monday, May 02, 2016
Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.
The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:
Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.
Wednesday, April 27, 2016
Old injunctions and new statutes
The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.
But does it?
The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).
My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.
Additional thoughts on Heffernan
SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.
A few additional thoughts on the decision and the case after the jump.The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).
The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]
Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.
[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.
Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?
Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.
Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.
Monday, April 25, 2016
As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.We pick up the morning after Election Day, still facing the Electoral College tie.
Early on, Selena asks "Didn't those Founding Fuckers ever hear of an odd number?" And while many a living constitutionalist has wanted to utter that phrase, this tie, per se, cannot be laid at the Founders' feet. The number of electors is based on congressional representation, which was last set by Congress in 1913. It might be more accurate to blame the Twenty-third Amendment, which, by adding three electors from D.C., turned an odd number into an even number. Or blame Nebraska and/or Maine, which allocate their electoral votes by district. The one time we see an electoral map, all five NE votes are red, although we do not see the split in Maine. Did O'Brien (Selena's opponent) win one district in Maine, giving him a vote he otherwise would not have, thereby creating the tie?
The big plot move is that Nevada, which had been called for O'Brien, is closer than 0.5%, kicking-in review of votes and a possible recount (Richard, who had been Jonah's crony all last season, is revealed to be an expert in Nevada recount procedure). So it appears that, at least initially, the show is going to satirize Florida 2000, rather than House of Representatives 1800. But just wait.
Finally, apparently con law experts are the new math/science/computer nerds. Amy returns from a conversation with the campaign's consultants and says "I don't know what's getting their dicks harder-an Electoral College tie or talking to a girl."
Friday, April 22, 2016
VEEP returns amid constitutional chaos
VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.
I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.
Thursday, April 21, 2016
The (still) irrepressible myth of Klein
SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.Justice Ginsburg wrote for Justice Kennedy, Thomas, Breyer, Alito, and Kagan. She hit a few key points.
1) She appeared to limit Klein's meaning to the idea that Congress cannot dictate constitutional meaning to the Court (what Larry Sager has called the prohibition on compelling the Court to speak "constitutional untruths"). Klein's additional statement that Congress also cannot dictate rules of decision in pending cases--from which SCOTUS, lower courts, and commentators had derived the "no dictating outcomes" principle--cannot be taken at face value. Instead, Ginsburg looked to the various non-Klein limitations on retroactive legislation and insisted that, outside of those limits, the Court had twice affirmed that "Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases." At a minimum, this marks a change of course, since "no dictating outcomes" had become Klein's central point in sub-constitutional cases.
2) Ginsburg rejected the Bank's two main, related arguments that the statute was unprecedented in applying to only one case and in not leaving anything for judicial resolution, since the factual questions to be resolved (whether the asset was in the United States, was blocked, and was equal in value to a financial asset of Iran) were foregone conclusions. As to the second, she rejected the argument that the facts were foregone conclusions, requiring "plenty" of particular judicial determinations. And, in any event, that facts are undisputed does not mean a court is not applying new law to those facts. As to the first argument, Ginsburg insisted that § 8772 is not limited to only one case; while the enforcement proceedings were consolidated for administrative purposes, they reflected efforts to execute on 16 different judgments involving more than 1000 victims. Moreover, she rejected that idea that there is something inherently wrong with particularized legislation. While legislation often is of general applicability, bills governing one or a small number of subjects are permissible and common (citing, inter alia, Wheeling Bridge, a case upholding a statute designating a single particular bridge as a post road, a case Klein reaffirmed and distinguished).
3) Finally, Ginsburg emphasized the statute's national-security context as an additional reason for deference to the political branches. Since Congress and the President creating foreign sovereign immunity, they also have broader power to create exceptions. This struck me more as a cherry-on-top argument good for this case. I expect the next Klein case, arising in a purely domestic context, to deemphasize that piece.
The Chief dissented, joined by Justice Sotomayor (which may be the most distinctive feature of the case), insisting that "there has never been anything" like this statute. No previous statute had singled out only a single pending case or a single defendant in this way. No statute had turned on such basic, already-undisputed facts.
To some extent, the divide in the Court turned on how they view several hypotheticals. The first is the "Smith wins" statute, which the Court had previously insisted (and the plaintiffs conceded at oral argument) would be invalid. The Court split over just how close § 8772 came to this paradigm. Roberts insisted they were the same, since creating a factual fait accomplii is no different that declaring a winner. Ginsburg, again deemphasizing this part of Klein, argued that such a law would be irrational, thereby violating Equal Protection. In any event, such a law would not be establishing a new legal standard, only compelling a result under old law. But Roberts had an interesting response: Such a statute would create new substantive law--old law did not necessarily determine that Smith wins, the new law does. Congress only can act by "changing the law" and anything Congress does (at least in exercising its power to enact statutes) is changing the law. It is necessary to take the next step of asking whether that new law that Congress enacted constitutes an invalid judicial act, something the majority fails to do.
The dissent offered a second hypothetical--a law declaring that a letter from a neighbor is conclusive proof of property boundaries, applicable only to one pending property case. But Ginsburg insisted this was the wrong analogy; the right analogy is a law clarifying which of two inconsistent maps should be used to establish the property boundary in the case. Notably, the statute declared invalid in Klein was problematic, in part, because Congress was dictating the effect to give a particular form of proof in the case.
A third Roberts hypothetical responded to the majority's position (used by many lower courts) that, as long as the result depends on some legal and factual determinations from the court, the law does not dictate the outcome. Imagine that the new law provided that Smith wins so long as the court finds that Jones was properly served and Smith's claim was within the statute of limitations, both of which are undisputed when the new law is enacted.* The majority's response, I suppose, is that those factual determinations do not go to the substantive merits of the claim being brought, while § 8772's factual determinations (whether the judgment debtor owns some enforceable assets) go to the heart of an action to execute a judgment.
[*] Then, just because, Roberts quoted Porgy and Bess.
Roberts closed by criticizing the opinion for offering a blueprint for how Congress can pick winners and losers in particular pending (or even threatened) cases going forward. In reality, it was clear before today that Klein would not have offered much resistance to most such efforts. Bank Markazi puts an exclamation point on that, particularly in arguably reading the "no dictating outcomes" principle out of Klein.
At the same time, Roberts did not offer a line between legislative and judicial conduct, "readily conced[ing], without embarrassment"** the difficulty in drawing such a line. Moreover, subject to due process retroactivity limits, Congress must be free to change the law in statutory cases, even where that alters who prevails in the case. After all, every law benefits one side or the other and Congress drafts the law to benefit the side Congress wishes to benefit. So even if Roberts is correct that § 8772 oversteps, he does not leave a sense of what Congress can, or should be able, to do.
[**] What might we craw from the "without embarrassment" language? And how might it relate to judges calling balls and strikes? Is Roberts acknowledging--and telling the public and the other branches--that constitutional decisionmaking is not so simple as he (and they) often make it out to be?
Friday, April 15, 2016
Attorneys' Fees and Departmentalism
The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.
Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.
Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.
Wednesday, April 06, 2016
The new median Justice
Geoffrey Stone appeared on Dahlia Lithwick's Amicus podcast to criticize the Republican refusal to move on the Garland nomination. I agree with Stone's basic point that this is politics dressed up as neutral principles that do not hold water.
But Stone made another point, which may be more compelling: Yes, appointing Garland would move the Court to the left of where it is currently, but only to put the Court roughly back to where it was before Justice Alito replaced Justice O'Connor in 2005. His underlying argument goes like this:
• When Alito replaced O'Connor, Justice Kennedy became the median justice and he is much more conservative than O'Connor, particularly on issues such as affirmative action and reproductive freedom (see, e.g., the Court reversing course on both issues almost immediately after Alito joined the Court).
• Replacing Souter with Sotomayor and Stevens with Kagan moved the liberal side of the Court further left, creating a broader gap between the two sides, but leaving the median--Kennedy--in the same place.
• If Garland joins the Court, Breyer or he becomes the new median justice, depending on who is further to the right. That moves the Court to the left because the median moves to the left, from Kennedy.
But to conclude that this only brings us back to 2004 (as opposed to, say, 1967), Breyer or Garland (whoever is the new median) would have to be in roughly the same place ideologically as O'Connor. Instinctively, this seems wrong--both are to the left of O'Connor, even substantially so. But on closer review, it is not so clear. After 80 cases together (about one term), Breyer agreed with O'Connor as to at least a judgment 83 % of the time, more than he did with anyone other than Ginsburg. And the chart in this piece places Breyer as more liberal than O'Connor (who is at the midpoint of the Martin-Quinn Score), although only slightly so. And if Garland is more conservative than Breyer, he must be similarly close to O'Connor on these scales. So maybe Stone is right that it will move the Court left, but not back to the days of a bloc of six reliably liberal Justices.
None of which is going to move the Senate majority, which finds anything to the left of the current Court unacceptable. But is interesting evidence for a counter-intuitive point.
Tuesday, March 22, 2016
Bartnicki, Alvarez, and Hulk Hogan
Amy Gajda argues that Gawker (which, following Monday's punitive damages verdict, is on the hook for $140 million*) may not find the success it expects on appellate review, including if/when the case gets before SCOTUS. Amy tries to read the tea leaves from the various votes in Bartnicki v. Vopper, the Court's most recent privacy/First Amendment balance case; she concludes that the reasoning of five Justices in that case suggests a majority might have gone for Hogan. But we can do more with the vote-counting by looking at a more recent case--United States v. Alvarez (the Stolen Valor Act case). And all of it may tie into the Court's ongoing vacancy.
[*] Almost certain to be remitted, even if the liability decision stands.
Bartnicki applied the principle that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern except to serve a government need of the highest order. Although formally a 6-3 decision, in reasoning it was more of a 4-2-3. Justice Stevens wrote for a plurality of Kennedy, Souter, and Ginburg, applying that principle to its fullest. Justice Breyer, joined by O'Connor, argued for a much more even and flexible balance that, while supporting the free-speech position in that case, might not in different circumstances. Chief Justice Rehnquist, along with Scalia and Thomas, dissented. Gajda argues that, facing Hogan in 2001, a 5-4 majority may have affirmed the verdict.Of course, Bartnicki was a 2001 decision and only four Justices remaining on the Court. But Alvarez might provide a hint of where the current Court might go as to Gawker. Although not a privacy case, Alvarez involved a category of speech (knowingly false statements of real-world fact) that many believed was entirely without First Amendment value or any meaningful contribution to public debate. This was explicitly a 4-2-3 case with a similar line-up: Kennedy, with the Chief, Ginsburg, and Sotomayor; Breyer concurring with Kagan; and Alito, with Scalia and Thomas, dissenting. The two decisions are of a piece. The plurality in both cases adopted a strong speech-protective position, demanding a compelling government interest and finding that interest wanting. And Breyer's concurrences are of a piece--a call to avoid the rigidity of strict scrutiny in favor of the greater flexibility of intermediate scrutiny. In both, Breyer found the statute to violate the First Amendment as applied, while hinting that a different case might come out differently. (I was surprised that Kagan would go along with Breyer here).
To the extent we can read anything from prior case, I would argue that the voting in Alvarez and Bartnicki together suggests the following. At least four Justices--the Chief, Kennedy, Ginsburg, and Sotomayor--would be receptive to Gawker's First Amendment defense. Two Justices--Thomas (who dissented in both cases) and Alito (who dissented in Alvarez)--are generally unreceptive to most free-speech claims--will not be receptive. And two Justices--Breyer and Kagan--might apply less-exacting scrutiny to reject the First Amendment defense, given the greater privacy interests and the shakier news and information value of the video. And were Scalia still alive, Amy would be right that we might have a 5-4 Court affirming the jury verdict against Gawker.
Instead, we face a 4-4 Court. So like everything nowadays, it comes down to Maybe-Justice Garland or Justice Trump-Appointee. And what the Supreme Court of Florida does as the last court to hear the case before SCOTUS.
Thursday, March 17, 2016
Parliamentary politics and judicial apppointments
Sen. Orrin Hatch has said he would be open to holding a hearing, and confirming, Merrick Garland during the lame-duck session in November/December, should Hillary Clinton wins the election. Ryu Spaeth at TNR reads this to mean it is not really about The People, at least if The People choose Hillary Clinton*--then we should accord the appointment power to the lame duck the Senate has been ignoring for eight months.**
[*] This is not to endorse this The People argument. The people spoke in 2012 when they re-elected Barack Obama and vested in him the executive power for a four-year period from January 20, 2013-January 20, 2017. Suggesting that this power should not be exercised during the election cycle defies that constitutional fact.
[**] I believe the President spoke with Clinton prior to making the nomination, on the chance that some late-year activity would fill the vacancy before Clinton, if elected, took office--whether through a recess appointment or through a lame-duck confirmation.
Hatch's position shows how far we have descended away from a separation-of-powers system and into a partisan/parliamentary system. It is not really about the new President making the appointment; it is only about some Democrat making the appointment, once the voters have indicated that they want a Democrat as new President. There is no difference between Obama and Clinton occupying the White House and making the appointment; the point is only their party affiliation. Of course, this ignores the reality that individuals matter--Obama at the end of two terms (although more popular than he has been since just after his reelection) is situated very differently in terms of power and politics from a newly elected President Clinton (something Hatch almost certainly recognizes). But this also shows why the system is so dysfunctional right now--the key to a party-based system is that the executive must have a workable/working legislative majority, so he can exercise his constitutionally vested powers.***
[***] This lends a different perspective to this piece by Dahlia Lithwick discussing the meeting between Obama and new Canadian Prime Minister Justin Trudeau, who ran on a similar "hope" theme, but who seems to be getting more slack from the public. Part of it is that Trudeau has a working legislative majority and while he no doubt faces criticism from the opposing party, it cannot stop him from doing anything. Obama has not had a working legislative majority (because of the filibuster) since February 2010.
Update (3/20): After the jump is video of Sen. Al Franken challenging what he calls the "absurdity" of the lame-duck-session confirmation argument. But, as described above, the Republican position is based on the idea that all Democratic presidents are the same--the election of Hillary Clinton represents The People approving of Barack Obama exercising the appointment power. Franken is right that this is absurd, but the absurdity is consistent with this new model of understanding partisan government.
Monday, March 14, 2016
This should not be surprising
Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.
[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.
But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).
Tuesday, March 08, 2016
Nixon, Burger, and timing of nominations
In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).
The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.
Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be. Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.
[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.
Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?
Monday, March 07, 2016
Jurisdiction, merits, and same-sex marriage
SCOTUS today granted cert and reversed the Supreme Court of Alabama, holding that under the Full Faith & Credit Clause, Alabama must recognize a Georgia second-parent adoption between same-sex partners.
SCoA had held that F/F/C was not required because the Georgia courts lacked subject matter jurisdiction to do a second-parent adoption for an unmarried couple, where the biological parent's rights were not terminated. But the propriety of the adoption was a matter of the merits, not jurisdiction. Georgia trial courts have general jurisdiction over "all matters of adoption," which this clearly was. The Court then turned to its usual jurisdictionality touchstones--the relevant statute does not speak in jurisdictional terms, does not refer to jurisdiction, has never been interpreted (by Georgia courts) as jurisdictional (Georgia courts recognize the line between whether a court has power and whether to grant relief), and the fact that the provision is mandatory does not make it jurisdictional. Georgia's rule of decision as to whether to allow an adoption does not speak to or limit the power of the state court to decide this type of case. SCoA thus was wrong (yet again, when it comes to marriage equality--it's been a bad week) in trying to squeeze this into the lack-of-jurisdiction exception to F/F/C.
Sunday, March 06, 2016
TRAP laws, rump SCOTUS, and the shadow docket
1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.
2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.
3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.
4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).
5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.
So might the Court take the following out in the short-term?Remand WWH to the Fifth Circuit for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along. Meanwhile, bar enforcement of the laws from other states as they are challenged, which has the effect of maintaining the status quo (clinics remain open); eventually, the lower courts themselves will get the hint and take steps to halt enforcement pending appeal. Eventually, a case will be teed-up for merits resolution by a fully staffed Court--again, depending on who wins the presidency, who replaces Scalia, and who else leaves the Court in the first two years of the new administration.
Friday, March 04, 2016
Alabama Supreme Court dismisses SSM mandamus
The Supreme Court of Alabama today dismissed the pending motions and petitions in the larger mandamus action filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.
Update: The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so. Marty Lederman's analysis captures the continuing confusion, given the seeming disconnect among the Order, the Certificate of Judgment, and the various concurring opinions, as well as the likely practical consequences (not many). Adding to the confusion--if the March 2015 mandamus order remains in effect, then what "petitions" (as distinct from various motions) were dismissed by Friday's order? [Further Update: Marty points to several separate petitions filed since March, including one by a probate judge asking the court to declare his entitlement to religious objections to issuing licenses to same-sex couples, in light of the jailing of Kim Davis.]
The interesting question is whether anyone can or will appeal the Alabama order. I expect it is unnecessary. If necessary, the federal court will enforce its injunction against any recalcitrant probate judges without regard to the continuing state order. To the unlikely extent Judge Granade refuses to enforce, plaintiffs can appeal the federal order and get the Eleventh Circuit (or SCOTUS, if things really go sideways) to enforce Obergefell and ignore the state court. All of which further supports Marty's point that SCoA's order will sit there, ignored but embarrassing in its existence.Finally, a quick comment on Justice Shaw's concurrence. He is dubious of departmentalism, which he calls "silly" and "rather nonsensical hairsplitting," since, even if Obergefell is not directly applicable, a later decision applying Obergefell will be. And he is correct in the sense that departmentalism rests on formalism--an executive official can resist Supreme Court precedent until that precedent is quickly applied in a case to which he is a party. At the same time, Shaw unwittingly captures the basic ideas behind what I have been calling "judicial departmentalism"--whatever executive officers can do, lower courts (including state courts) are bound by SCOTUS precedent (whether 5-4 or 9-0, whether the lower-court judges agree with it).
The IRS Needs to Pay Attention to Pulpit Freedom Sunday 2016
In just over eight months, we'll be voting for our new president. Irrespective of who's on the ballot--and, for that matter, irrespective of who ultimately wins--one thing is for certain: in seven months or so, a bunch of church-goers are going to hear their spiritual leader endorse a candidate.
Sometime during the month leading up to the presidential election,[fn1] the ADF will sponsor its annual Pulpit Freedom Sunday, an act of civil disobedience by churches[fn2] and an attempt to challenge the campaigning prohibition in court.
Basically, in 1954, Congress added a short phrase to section 501(c)(3) of the Internal Revenue Code. That phrase prevents an organization from qualifying for a tax exemption unless it
does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
The ADF believes that this campaigning prohibition is unconstitutional, at least as applied to churches. So for the last eight years, it has encouraged pastors to flout the rule, to include an explicit endorsement of a candidate in their sermons leading up to Election Day, and then to send a copy of the sermon to the IRS.
During the last presidential election, more than 1,500 pastors apparently participated. And how many churches lost their tax exemptions? None.
The ADF has organized Pulpit Freedom Sunday deliberately to create a test case that it can take to the courts. It expects the courts to strike the campaigning prohibition down as unconstitutional. But it's not just the ADF that wants the test case: Americans United for Separation of Church and State also wants the IRS to enforce the campaigning prohibition.
Clearly, the two groups think the case will turn out differently. Which is right? It's unclear. Scholars (including me!) have argued extensively about whether the prohibition is constitutional as applied to churches. But the question has only been adjudicated once, by the D.C. Circuit. The D.C. Circuit upheld the prohibition as constitutional, and, for whatever reason, the church didn't appeal to the Supreme Court.
Note that, for various procedural reasons, nobody has standing to challenge the prohibition unless and until the IRS revokes a church's exemption.
Why hasn't the IRS acted until now? Probably because there's really no upside to revoking a church's tax exemption; it's not going to significantly increase the government's revenue, and it would likely be unpopular at best in a world where politicians run against the IRS as a central part of their platform.
But at some point, the reticence becomes too much, as it has here: in 2012, the Freedom From Religion Foundation sued the IRS for not enforcing the prohibition, and eventually settled with the understanding that the IRS would eventually start enforcing it.[fn3]
And, as I lay out in my recent University of Colorado Law Review article, now's the time. Pulpit Freedom Sunday has reduced the search costs to nearly nothing--pastors send their sermons in to the IRS. I mean, the IRS has to actually look at the sermons, because there's no guarantee that participating pastors fully understand how to violate the campaigning prohibition. (Check out this sermon, for instance: the pastor makes a strong case for religious involvement in politics, but churches aren't prohibited from being involved in politics. Just from endorsing or opposing candidates, which the pastor doesn't do here.)
So what should the IRS do? It should announce, today, that is will revoke the tax exemption of every church that endorses or opposes an candidate for political office as part of Pulpit Freedom Sunday. Then it can sit back and wait for the sermons to arrive, follow through, and get ready to litigate.
That way, both the ADF and Americans United will be happy, and we can have closure on the constitutional status of the campaigning prohibition, at least as applied to religious organizations.
[fn1] I'm pretty sure that I read that the ADF is expanding Pulpit Freedom Sunday this year to encompass the whole month of October, but I can't currently find anything that gives a date or dates.
[fn2] Also, presumably, synagogues and mosques and other religious organizations. But honestly, the ADF seems to be thinking Christian-centric, with its choice of Sunday as the relevant day.
[fn3] BTW, though this has nothing to do with this post, isn't the perma.cc thing awesome? The link is already broken, but the University of Colorado Law Review has given it a permanently-findable home.
Tuesday, March 01, 2016
Read the text, Senator
If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.
Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.
Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.
If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.
Sunday, February 28, 2016
More on libel, New York Times, and Donald Trump
I still do not believe we are in any danger of having President Trump open up our libel laws, but let me add a few more thoughts. After all, as Ronald Collins reminds us, this is SOP for Trump--in September, his attorney threatened a multi-million-dollar lawsuit against Club for Growth over ads critical of Trump.
NYT v. Sullivan arose in a period in which state officials were using civil libel suits to create something akin to seditious libel--a prohibition on criticizing government, government officials, and government policy. Heed Their Rising Voices triggered five defamation suits (including Sullivan's), seeking a total of $ 3 million; the Times was a defendant in lawsuits throughout the state seeking more than $ 300 million. Until recently, my instinct would have been that no modern-day public official, particularly a national figure such as the President (or someone aspiring to that office), would sue or threaten to sue his critics. Part of that is driven by NYT--that doctrine exists precisely to stop public officials from suing their critics. But another part is that suing or threatening to sue would make an elected official look weak, greedy, and ineffectual--his feelings are being hurt, so he is running to the principal to complain, rather than responding in the public debate.
But Trump turns every bit of conventional wisdom on its head. Rather than seeing a libel lawsuit as making him appear weak, Trump supporters would seem to look at it as a sign of strength, that he is a fighter and willing to stand up to evil newspapers. So Trump may unwittingly be showing why NYT is so important and why it is not going away anytime soon.
Saturday, February 27, 2016
Things not worth getting worked up about, Part 671
Donald Trump insisting that he wants to "open up our libel laws" so media outlets can be sued "like [they] never got sued before." First, there is no federal libel law and Congress, especially Democrats, are not going to allow one to be enacted. (I still cannot tell if Trump truly believes he can unilaterally do the things he talks about; I have no doubt his supporters do believe it). Second, this is an incredibly speech-protective Court, including as to New York Times v. Sullivan, so the likelihood of the Justices overturning NYT (regardless of who replaces Justice Scalia) is precisely nil. So like much of what comes out of Trump's mouth, it cannot be taken seriously.
Which is not to say that Trump's views on free speech, especially as to public protest and dissent and the power of police to physically manhandle peaceful protesters, are not genuinely scary. They are. But the right to protest in public has become incredibly constrained, especially when protest happens within sniffing distance of the President; I doubt things would be so much different (or worse) under President Trump, only more blatant. That does not make this a good situation, only a common and unsurprising one.
Friday, February 26, 2016
A great conversation on Justice Scalia
This edition of the National Constitution Center's We the People features a conversation with two of Justice Scalia's early law clerks--Larry Lessig (Harvard) and Steven Calabresi (Northwestern); it is one of the best discussions of his work and legacy that I have heard since he passed away.
One interesting piece is discussion of whether and why Scalia became nastier in his rhetoric and tone in the later years. Calabresi and Lessig agree on two possible, somewhat related, explanations. 1) Scalia moved away from his early practice of hiring at least one liberal-leaning clerk (obviously Lessig in that term), creating something of an echo chamber; 2) As Scalia got older, the age gap between him and his clerks became greater, making them less willing or able to talk him down from his lesser instincts. Calabresi relates how he and his co-clerks would read drafts and convince him to dial it back or to step away from the opinion for the night and come back to it, presumably to tone it down the next day. But surrounded by younger and less intellectually diverse clerks, no one was counseling him back from the rhetorical edge--whether because they did not believe themselves able to do it or because they did not see anything wrong with that excess.
The point about the growing age gap is obvious, but interesting. One of the things that keeps law profs feeling "young" (even as we increasingly are not) is that we encounter a new group of 22-year-olds in our classrooms every August. So at least within the context of work, we are less aware of getting older because we are still dealing with recent college grads. (A colleague who is in his early 60s confirmed this sense). I imagine it is the same for judges, who similarly have a new group of 25-year-old law clerks entering chambers every August. But while the new blood keeps us feeling young-ish, the dynamic inevitably changes as the numerical distance grows. And if Calabresi is right that it affected how Scalia judged, it surely affects how we teach.
Monday, February 22, 2016
Recency bias, Scalia's successor, and the First Amendment
There has been a lot of discussion about the fate of various likely 5-4 cases from this term and recent 5-4 decisions should Scalia's successor be appointed by President Obama or President Hillary Clinton. Ron Collins has a post on the 5-4 free speech cases in which a Democratic appointee likely would vote differently than Scalia, perhaps leading to these decisions being overturned in short order.
But I wonder how much it will matter for many of these cases. Citizens United is still only doing the work started by Buckley v. Valeo (for campaign-spending generally) and Bellotti v. Bank of Boston (protecting corporate speech), while overturning one outlier case (Austin v. Michigan Chamber of Commerce). Morse v. Frederick was a bad decision and a wide expansion of what qualifies as "in-school" speech, but students were losing most cases (especially involving t-shirts) just under the Tinker balancing. Garcetti v. Ceballos categorically removed job-related-speech from the First Amendment's reach, but the prior requirements under Connick and Pickering still largely worked against employees. In other words, many of these cases did not revolutionize First Amendment law or dramatically depart from prior law, as much as they sharpened already-speech-restrictive doctrine. The one exception may be the union-fee cases--both this Term's Friederichs, as well as two other recent cases questioning the permissibility of union-fees and leading us to Friederichs.
Tuesday, February 16, 2016
The West Wing may not be the best source for resolving political problems
Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.
Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off. I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).
First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring. We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.
Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**
[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle.
[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.
Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.
Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).
Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):
Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.
Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.
Lang: Well, thank you for that.
But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.
I know, I know--it is only a TV show.
Sunday, February 14, 2016
Justice Scalia and the Blaine Amendments
Following up on Josh's post: For about 20 years, I've been hoping for -- and sometimes trying to contribute to to bring about -- a Court decision to the effect that the "Blaine Amendment"-type provisions in state constitutions (which, in my view, needlessly discriminate against religious institutions) violate the Constitution of the United States. The currently soon-to-be-argued Trinity Lutheran case appeared to be a decent candidate for a case that would produce such a decision. However, given the votes of Justices Breyer and Ginsburg in Locke v. Davey and Zelman, it seems likely that they'll endorse the lower-court opinion in that case (which allowed to Missouri deny an "application for a grant of solid waste management funds to resurface a playground on church property").
Thursday, February 11, 2016
Judicial supremacy and professional responsibility
The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.
One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS's interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is "emphatically the province and duty," etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.
On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.
Wednesday, February 10, 2016
Ferguson consent decree falls apart, DOJ sues
The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.
I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in single night. Life imitating art imitating life?
Kim Davis update
Judge Bunning of the Eastern District of Kentucky yesterday denied as moot the ACLU's motion to enforce the injunction against Kim Davis. The plaintiffs had requested that the court order the deputy clerks to issue the non-Kim-Davis-altered licenses, reissue the adulterated licenses, and order the deputies to ignore Davis's orders to issue any other type of license. But the court found that: 1) licenses are issuing to anyone who wants them; 2) Davis is not interfering; and 3) "there is every reason to believe" the altered licenses would be recognized as valid.
I suppose this is all the right outcome, although the court's ready assumption that these altered licenses are valid may be a touch presumptuous. We have no idea what an opportunistic litigant (say, in a future divorce or custody case) and rogue state-court judge might do with a marriage based on one of these licenses. Still, the Liberty Counsel's insistence that the ACLU wanted Kim Davis's "scalp" is just silly.
Race and the Law Prof Blog on Alternative Constitution Day
While I'm plugging stuff... the Race and the Law Prof Blog is hosting a blog-symposium on Alternative Constitution day, that is, on the idea that along with (or even instead of) celebrating September 17, we ought to be celebrating the refounding represented by the Reconstruction Amendments, and their renewal of the Constitutional promise of equality for all. There's still an opportunity to submit posts, and there are a number of existing posts. Here's mine (which is unsurprisingly about the rule of law and its relationship to racialized police as well as private violence), but I like the others better---particular can't-miss posts (among many) include Saru Matambanadzo's post on personhood, Craig Jackson's on social rights, and Nancy Leong's thoughtful critique of free speech absolutism. But go read them all.
Thursday, January 28, 2016
Ferguson consent decree
DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.
Monday, January 25, 2016
More judicial departmentalism
A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.
First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]
Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.
Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.
Saturday, January 23, 2016
Show (audibly), don't tell
Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.
Wednesday, January 20, 2016
Individual right or government wrong?
I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument.
It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech
Tuesday, January 12, 2016
SCOTUS Preview: Political patronage and misperceived association
I have a case preview at SCOTUSBlog for Heffernan v. City of Paterson, to be argued next Tuesday, January 19. The case concerns whether a public employee can state a First Amendment retaliation claim where the government demoted him explicitly because of his supposed political activity, but where he actually was not engaged in any activity. The most recent We the People Podcast features Burt Neuborne (NYU) and John Inazu (Wash. U.) discussing the Assembly Clause and they touch on this case.
Sunday, January 10, 2016
Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.
1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.
[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.
The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.
2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.
Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.
3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.
[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.
4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?
Friday, January 08, 2016
No one gets it
I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.
And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.The USAs insist that the "issue has been decided by the highest court in the land and Alabama must follow that law." Carl Tobias (Richmond) says Obergefell "was a national ruling and it applies nationally." While correct in the abstract, it makes it all sound automatic when it is not--the Court's opinion applies nationally, but the judgment of the Court does not. One of two things must happen: Either the extra step of a judgment against Alabama officials as to Alabama's law, based on Obergefell, is necessary, or Alabama officials must voluntarily comply with Obergefell in order to avoid the inevitable judgment. The point of Moore's order is to force Alabama officials to follow the first rather than second path. That my be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it.
But the anti-SSM advocates are equally wrong because they ignore the judgment and injunction against the class. So one advocate can say that Alabama does not have to follow a Supreme Court decision that ruled on law in another state. Which is true, but irrelevant, because of the injunction. Unfortunately, they can argue that way only because Moore's critics (and most, but not all, reporters) talk about this as defying the Supreme Court in Obergefell rather than defying the injunction that applied Obergefell to Alabama law.
And the attorney for one of the probate judges insists that the Eleventh Circuit has not applied Obergefell as to Alabama law. This is wrong in several respects. First, the Eleventh Circuit affirmed the injunction.although the reasoning is convoluted and incorrect in some respects, including its understanding of how Obergefell affected Alabama. Second, regardless of what the Eleventh Circuit did or did not do, the class injunction is out there--it was was entered, took effect, has not been reversed by a higher court, and has not been stayed. This means probate judges are under an ongoing judicial obligation, imposed on them directly and on pain of contempt, to issue licenses. So Moore's order does not merely tell probate judges to wait--it is telling them to act in contempt of a federal judgment. Third, neither federal circuit nor district precedent is binding on state courts, thus, even if the Eleventh Circuit had not spoken, it would not matter because the Eleventh Circuit does not create a greater obligation on Alabama officials than a district court.
So if we are going to discuss this accurately, everyone needs to shift the focus to the district court and to Judge Granade's extant injunction. And with that focus, we see that Moore's order, if followed, sets probate judges (although not Moore himself) up for a potential Kim-Davis-like showdown.
Wednesday, January 06, 2016
Alabama (still) does not go gentle . . .
Chief Justice Roy Moore of the Supreme Court of Alabama is back. Today, he issued an order requiring Alabama probate judges to continue to refrain from issuing marriage licenses to same-sex couples, pending resolution of the mandamus action that has been pending in the Court since March. (H/T: Religion Clause Blog). Once again, Moore is sort of right, sort of wrong, and very short-sighted. A few thoughts after the jump..The linchpin of his analysis is that Obergefell is not directly binding on Alabama probate judges or as to Alabama law; this, Moore insists, is the "elementary principle" that a judgment only binds the parties to that case. Thus, no higher court has spoken to the validity of Alabama's same-sex marriage law or the obligation of Alabama officials to recognize same-sex marriages; instead, we are still waiting for SCoA to address the statutory and constitutional questions in the mandamus proceeding. Moore is right about the scope of SCOTUS's decision. Interestingly, he draws support from cases out of Kansas and the Eighth Circuit that rejected the argument that Obergefell mooted challenges to the laws in these other states; those courts all insisted that Obergefell was merely binding precedent in future litigation, but did not speak to laws or officials or couples in these states, thus leaving those cases as active disputes. In other words, Moore finds support for the position of the Alabama government in cases rejecting the position of these other state governments.
Unfortunately for Moore (or at least for some Alabama probate judges), he ignores the class certification in Strawser v. Strange in the Southern District of Alabama. There is an extant class-wide injunction in the district court declaring the state SSM ban unconstitutional and binding every probate judge to issue licenses to any same-sex couple that wishes to marry in Alabama. That injunction immediately took effect when SCOTUS issued its decision in Obergefell. Thus, while Obergefell is not binding on anyone in Alabama, the district court judgment is. So Moore's order is setting some probate judges up to be held in contempt of that injunction, as well as for damages liability, since Obergefell should clearly establish the right of a same-sex couple to a marriage license, barring outside issues (Ron Krotoszynski his a similar point in The New York Times). And, unlike with Kim Davis, no new federal litigation need be filed; a couple can jump straight to enforcing the injunction.
I am not surprised Moore would ignore that inconvenient piece of information. But I also have not been able to find any indication of activity or orders in Strawser since the summer. Probate judges in several parts of Alabama have been refusing to issue licenses all along, but I have not seen anything about plaintiffs or the court moving to enforce the class injunction. It will be interesting to see whether Moore's new order shakes loose some activity in federal court.
Update: That Times piece is notable because there is no mention of the Strawser litigation. That, not Obergefell, is the key to all of this. That is what binds and compels probate judges to issue the licenses, not Obergefell simpliciter. Will no one ever get this right?
Further Update: Yes, Chris Geidner at Buzzfeed, who generally does a good and accurate job of covering this stuff.
Further, Further Update: Based on Chris' report, in concluding that Obergefell "abrogated" the SCoA decision, the Eleventh Circuit dismissed the appeal as moot. Both of those conclusions are wrong (Marty is right about that in his comment), as well as inconsistent with the Eighth Circuit mootness cases that Moore cited in his order.
Tuesday, December 08, 2015
Technically . . .
I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."
This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.
It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?
Sunday, December 06, 2015
State action puzzle
Video captured (link contains multiple videos) numerous incidents of security getting very physical with University of Houston fans attempting to run onto the field following UH's victory in the American Athletic Conference Football Championship. The game was played at the stadium on UH's campus and security was provided by CSC, a private contractor. The most telling images are GIFs of one officer throwing roundhouse punches at a fan lying on the ground and video of another officer body-slamming a fan, only to be loudly called out by two officials in different-colored shirts. UH announced that it is terminating its contract with CSC and looking into any appropriate legal action.
First, it seems pretty clear that CSC and its employees acted under color of state law for any coming § 1983 actions. They were contracted by a state agency to perform the government function of providing security at a public event in a publicly owned stadium. Some might depend on the terms of the contract with CSC and how much control or supervision UH wielded.
Second, I cannot help but notice that most of the student-trespassers (and make no mistake, they are not allowed on the field) shown being tackled are white and many of the security officers are black. It is difficult to not read something into the swift and angry university (i.e., government) reaction, especially compared to the typical response when the victims of police violence are black. This is not to say I am disappointed but UH's response, only that I wonder if it would have been different if the student-trespassers were black and the authority figures white.
Friday, December 04, 2015
The Johnson Retroactivity Circuit Split Plot Thickens...
A few weeks ago, I wrote a rather lengthy post about the circuit split over whether the Supreme Court's June 2015 decision in Johnson v. United States both (1) is "substantive" (and therefore retroactively enforceable by federal prisoners filing their initial claims for collateral post-conviction relief); and (2) has been "made retroactive" by the Supreme Court (and can therefore provide the basis for a second-or-successive application for collateral post-conviction relief). As I explained then, unlike the typical circuit split, a combination of the jurisdictional limitations imposed by AEDPA and the government's litigating position (that the answer to both questions is "yes") has seemed, at least to date, to deprive the Supreme Court of a "normal" way to resolve this circuit split, suggesting instead that the matter be resolved through the Court's seldom-utilized authority to issue extraordinary writs, including an "original" writ of habeas corpus. As importantly, the clock is running; it's widely believed that AEDPA's one-year statute of limitations will require all Johnson-based claims to be filed by June 26, 2016, no matter when the Supreme Court clarifies its retroactive application.
Well, the plots, such as they are, are thickening...
The Supreme Court now has before it at least three petitions for original habeas writs (In re Butler, In re Sharp, and In re Triplett), along with at least one petition for a writ of mandamus (also in Triplett). My own view is that original habeas makes more sense in this context than mandamus, especially since the Justices may agree, even in holding that Johnson is retroactive, that they hadn't previously "made" Johnson retroactive, and so the lower-court decisions refusing to certify second-or-successive petitions aren't erroneous (and, thus, subject to correction via mandamus). For more on this, see the habeas scholars' amicus brief in support of the petition for original habeas in Butler (that I co-authored). But whether it's habeas or mandamus, the bottom line would be the same: using the Court's power to issue extraordinary writs to sidestep AEDPA.
To that end, the Court has ordered the Solicitor General to respond (a very unusual step in an extraordinary writ case) to the habeas petitions in Butler and Sharp, and to the mandamus petition in Triplett. Those responses are all due sometime in December, and it will be fascinating to see what position the SG takes, since the government generally supports Johnson retroactivity, generally dislikes extraordinary relief, and has yet to take a position on whether all Johnson claims must be filed by June 26, 2016 (such that the Supreme Court would have to take and decide the issue sooner, rather than later).
One clue may be found in a brief the Solicitor General filed on Wednesday in opposition to certiorari in another case--Hammons v. United States. Here's the key passage:
If the Court decides to exercise its jurisdiction under the All Writs Act, 28 U.S.C. 1651(a), to resolve the conflict in the courts of appeals on the question whether Johnson has been made retroactive to cases on collateral review, there is a petition for a writ of mandamus currently pending before the Court that expressly asks the Court to address that question through its authority under the All Writs Act and therefore, unlike this petition for a writ of certiorari, specifically addresses the strict standards applicable to an exercise of that jurisdiction. See In re Triplett, No. 15-625 (filed Nov. 10, 2015). The government's response to the petition for a writ of mandamus in Triplett is currently due on December 14, 2015.
There are also three pending petitions for a writ of habeas corpus that ask the Court to address the question of Johnson's retroactivity through the Court's authority to issue writs of habeas corpus under 28 U.S.C. 2241. See In re Butler, No.. 15-578 (filed Nov. 3, 2015); In re Triplett, No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-646 (filed Nov. 16, 2015). . . . The Court has ordered a response from the United States in Butler, which is currently due on December 18, 2015. It has also ordered a response in Sharp, which is currently due on December 30, 2015. The Court may therefore wish to hold this petition until it acts on the petition for a writ of mandamus filed in Triplett or any of the petitions for a writ of habeas corpus.
Perhaps this passage is meant to suggest that the government will not oppose extraordinary relief--whether through mandamus in Triplett or habeas in Butler, Sharp, and/or Triplett--as a way for the Justices to settle the Johnson retroactivity question. If so, then the Supreme Court may well be on the verge of doing something it hasn't done in decades (and of settling a messy, messy circuit split in the process).
Thursday, December 03, 2015
"Joint" Post on Pot Federalism, by Jessica Berch and Chad DeVeaux
We’re glad that we lived to post another day and that our budding thesis has not yet gone up in smoke. This week Chad and I are writing together to lay out the potential responses a prohibitionist state may deploy to deal with spillover from a pot-friendly neighbor. Until recently, prohibitionist states had two obvious and unsatisfying options — sue their neighbors (as Nebraska and Oklahoma have done), or step up the already draconian penalties for pot possession. The Tenth Circuit recently accepted the scholarly consensus that a state may regulate out-of-state conduct if that conduct affects a substantial number of in-state residents — at least so long as “the burden imposed” on interstate commerce is not “clearly excessive in relation to the putative local benefits.” If this holding stands, it opens a wealth of other options (in my view) or a Pandora’s Box (in Chad’s).
On one end of the spectrum, scholars argue that States can (and should) enact laws punishing their citizens (both civilly and criminally) for getting high while visiting a pot-friendly state. At the other end of the spectrum, other scholars believe that state lines demark absolute regulatory barriers.
Mark Rosen has argued that when a state legalizes formerly taboo conduct (e.g., gambling) such experimentation presents what he calls a “travel-evasion” problem. Such state experiments, he posits, threaten the sovereignty of more-restrictive states. By “giv[ing] citizens the power to choose which state’s laws are to govern them on an issue-by-issue basis,” heterogeneous state laws “cripple the ability of [less-permissive] states to accomplish constitutional objectives.” 150 U. PA. L. REV. at 856. Professor Rosen’s theory implies that prohibitionist states can bar their citizens from — and criminally punish them for — purchasing marijuana or getting high in pot-friendly states.
Others argue that states should take a more measured response. I argue that because a state is “not compelled to lower itself to the more degrading standards of a neighbor,” Illinois v. City of Milwaukee, 406 U.S. at 107, a state has limited authority to regulate extraterritorial conduct. I’m concerned that application of Professor Rosen’s theory would further exacerbate the already epidemic rate of mass-incarceration. I also believe that (as Chad himself has argued in his Boston College piece) because pro-pot states create negative externalities analogous to pollution that spill over into neighboring jurisdictions, it is reasonable for those negatively affected neighbors to impose civil liability on the polluters. Indeed, this reasoning underlies the Tenth Circuit’s conclusion in Epel that Colorado may regulate coal-burning plants in neighboring states.
In the middle of the spectrum is Lea Brilmayer. Confronting divergent State laws on assisted suicide and abortion, Professor Brilmayer proposed her “Interstate Preemption” theory. She contends that “[s]tates . . . possess the power to regulate their citizens’ conduct in other states in the usual case,” but posits that the host state’s law will “preempt” the home state’s law in those comparably rare occasions when the host’s law manifests a conscious decision to make the conduct in question an “affirmative right,” rather than an expression of “mere indifference” to the conduct. 91 MICH. L. REV. at 877-78. The myriad different marijuana regimes — from enforced prohibition (Idaho), to de facto decriminalization (New York), to apparent enshrinement as a constitutional right (Colorado) — will affect a neighboring state’s ability to enforce its own marijuana laws differently.
Further along the spectrum falls Seth Kreimer. What some critics deride as a “travel evasion” problem, Professor Kreimer argues is a feature of federalism, not a bug: “When citizens can choose among and compare the virtues of the permission of assisted suicide in Oregon, covenant of marriage in Louisiana, . . . and same-sex unions in Vermont, we are likely to have a society that is morally richer, practically freer, and personally more fulfilling . . . .” 150 U. PA. L. REV. at 974. He argues that states do not have the authority to forbid their citizens’ extraterritorial acts when those acts are permitted by the host state. In Professor Kreimer’s view, a state’s efforts to deny its citizens the right to partake in activities permitted by the host state run afoul of the Citizenship Clause of the Fourteenth Amendment, the Commerce Clause, and the Privileges and Immunities Clause. 67 N.Y.U. L. REV. at 451. Extending Professor Kreimer’s views to marijuana would seem to leave prohibitionist states with few options to combat spillover.
Finally, at the opposite end of the spectrum (from Professor Rosen) is Chad. He advocates an expansive view of the dormant Commerce Clause’s (possibly defunct) ban on direct regulation of extraterritorial commerce. He previously argued that the DCC should be read to prohibit the certification of multi-state class actions under a single state’s law. 79 GEO. WASH. L. REV. at 995-1000. Even after the Tenth Circuit’s opinion, he stubbornly adheres to this view.
Chad posits that the DCC protects “the autonomy of the individual States within their respective spheres” by dictating that “no state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” 79 GEO. WASH. L. REV. at 1005-06. If the DCC's extraterritoriality bar has gone gently into that good night, Chad argues that the marijuana-legalization fight will lead to chaos. Prohibitionist states may seek to directly regulate transactions in neighboring states, pressuring pro-pot states to enact legislation protecting their nascent marijuana markets from foreign interference. He asserts that the extraterritoriality doctrine’s demise will open “the door . . . to the rivalries and reprisals” that the Commerce Clause was designed to avert. In short, under his expansive reading of the DCC, prohibitionist states are limited to the two meager options first explored — litigation or increased criminal penalties.
This has been but a 10,000 foot overview of the present dilemma. Next time, Chad and I will more thoroughly explore our own respective theses — and to be “blunt,” I will explain why his view is wrong! (Chad requires me to say that he will show how it is my view that is, in fact, wrong.)
Monday, November 23, 2015
Should Non-Citizens Be Allowed to Vote? (Local Law Edition)
Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds. Similarly, some municipalities have granted the right to vote to non-citizens. Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.
Currently there are six Maryland towns that allow non-citizens to vote in all city elections. Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them. In Chicago, non-citizens may vote in school board elections. New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.
Some local jurisdictions are debating whether to expand the voter rolls to include non-citizens. New York City, for instance, is considering an ordinance to allow aliens to vote in all city elections, which would add up to 800,000 people to the voting rolls. The proposal, debated in 2013, would allow non-citizen legal residents who have lived in New York City for six months to vote in mayoral and city council elections. Although thirty-one of the fifty-one New York City Council Members supported the ordinance two years ago, Mayor Michael Bloomberg opposed it, and the Speaker of the Council blocked a final vote on the law. There is speculation that the measure could come before the City Council again, especially as current Mayor Bill de Blasio might support the idea. Non-citizen voting is also being debated internationally, such as in Toronto, Vancouver, and in various European countries.
There are both theoretical and practical reasons for expanding voting rights to non-citizens. As Professor Jamie Raskin explained in a law review article, “the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens — who are governed, taxed, and often drafted just like citizens — have a strong democratic claim to being considered members, indeed citizens, of their local communities.” Moreover, local residents – whether they are citizens or not – care about, and should have a say in, local affairs. Allowing them to vote facilitates greater participation in the community, which will encourage these voters to become citizens.
Of course, there may be good policy reasons not to expand suffrage to non-citizens, such as that voting is one of the key rights of citizenship, and that expanding the franchise for only certain elections is a logistical nightmare with separate ballots for federal, state, and local offices.
The point here is not to comment upon the merits of those policy questions -- although they have even greater salience these days given our current debates on immigration. Instead, what is key is that this discussion is occurring at the local level. Municipal laws have driven the debate over expanding the franchise. The voting rights community should take notice. If we want better protection for the right to vote, then we need to shift our focus to look at municipal laws.
Seeking the truth
Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means I really was looking for the truth.
Tuesday, November 17, 2015
Scalia (sort of) gets it, the media (still) doesn't
According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.
A few thoughts after the jump.
First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.
Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.
Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.