PrawfsBlawg

Stupak Amendment and the Constitution

Marci Hamilton argues today that the Stupak Amendment is unconstitutional on three grounds: 1) It violates the Establishment Clause by imposing a minority religious worldview onto secular policy; 2) It violates Equal Protection, by imposing limits on one female-centered medical procedure, but not on male-centered ones, such as Viagra prescriptions or prostate surgery; and 3) It violates Substantive Due Process and Privacy, imposing an undue burden on reproductive choice that is unconnected to government funds (as with the Hyde Amendment).

I don't buy the Establishment argument, for many of the reasons implicit in Rick's "simmer down" post. But the other two strike me as potentially meritorious arguments.

Property As/And Constitutional Settlement

I've posted a new paper with this title to SSRN.  The article addresses the constitutionality and propriety of governments settling constitutional issues or claims by disposing of public properties through various forms of privatization or by taking the subject properties.  Settlement-by-disposition has occurred with increasing frequency in Establishment Clause contexts.  Salazar v. Buono, which was argued in October and may be decided early next year, is an example.  Public forum properties such as streets and parks have also been disposed of in order to settle constitutional controversies.  Settlement-by-disposition is neither a new phenomenon, nor one limited to the sometimes contentious public display of religious symbols.  In addtion to the foregoing, consider Boumediene v. Bush, in which Justice Kennedy pointedly reminded federal officials that the power granted by the Constitution to acquire and dispose of federal territories does not carry with it the power to "switch the Constitution on or off at will."

The article traces the practice of settlement-by-disposition to the civil rights era, when officials devised a variety of creative dispostions in an effort to avoid integration.  Decisions from the 1960s and 1970s revealed no clear answer to the question whether officials could dispose of constitutional claims by disposing of public properties.  Some lower courts stretched the nascent state action doctrine and equal protection principles to prevent dispositions that were plainly intended to thwart integration orders.  But other courts, including the Supreme Court in a decision involving the disposition of public swimming pools, permitted officials to dispose of properties even though the result was to negate integration.  The Court did resist dual school system and other sham dispositions in the public education context.  But it was never forced to decide whether officials could simply close the public schools entirely in the face of desegregation mandates; although such proposals were made by segregationist public officials, southern parents and officials ultimately rejected the idea.    

In the aftermath of the oral arguments in Buono, some media and commentators seemed rather disappointed that the case might be decided on mere "property" grounds rather than on the Establishment Clause merits.  But I think settlement-by-disposition is actually the most significant aspect of the case, not least because this practice has implications far beyond the "donut hole" in the Mojave.  As Nelson Tebbe recently posed the fundamental question:  "When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?"  I propose a general framework for thinking about and analyzing the constitutionality and propriety of settlement-by-disposition, one that draws upon the lessons of the civil rights experience.  The framework focuses on the fiduciary duties owed by public officials with regard to the critical assets subject to disposition.  The trust analogy I propose is not perfect.  But it responds directly to the danger that settlement-by-dispositon can be used to render constitutional liberties discretionary.    

 I invite those interested to read the draft, and of course would welcome any comments.    

The Pontiac School District litigation: How the incoherence of doctrine breeds ideological division

The Sixth Circuit's 8-8 en banc deadlock last month in the Pontiac School District case is a nice illustration of the confusion, both doctrinal and ideological, besetting the federal government's spending power. The (in)decision suggests the folly of using "plain statement" rules like Pennhurst to protect federalism when one lacks a coherent theory about what "federalism" is supposed to accomplish: Such theory-less federalism is a recipe for ideologically driven opinions. This is not to say that the judges betrayed their oaths to uphold the Constitution for partisan ends. It is to say only law, like nature, abhors a vacuum: When both the statute and the canon of construction (Pennhurst) are essentially vacuous, then the judiciary is forced to fall back on something else to decide cases. It is natural that judicial instincts about the merits of NCLB -- an issue over which there is fierce partisan disagreement -- will be the deciding criteria.

At issue in Pontiac School District is the question of whether the No Child Left Behind (NCLB) statute requires states to spend their own money to comply with the NCLB's conditions on the federal money. The school districts' argument against such a requirement is NCLB's stipulation that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a). The school districts argue that, under this provision, they cannot be obliged to use their own revenues derived from state and local taxes to comply with the NCLB, because such funds are not "not paid for under this Act." On this view, a state would be entitled to NCLB funds just so long as it spent the federal money on federal purposes -- testing, remedial education, etc. -- even if the state otherwise entirely disbanded its educational system by eliminating state revenues.

Given that the NCLB (like every other federal grant statute) contains a "non-supplanting" requirement, barring recipients from supplanting state money already being spent on federally aided purposes with federal grant dollars, the school district's reading of the NCLB seems textually implausible. But it is a mark of the chaos of spending power doctrines that Judge Cole could garner eight votes for the school district's position: Although preposterous from the point of view of practical public finance, it was not doctrinally senseless under Pennhurst, which requires grant conditions to be unambiguous. Given that the concept of "ambiguity" is itself hopelessly ambiguous, Pennhurst is an invitation for judges to protect state power from federal conditions whenever the conditions in question offend the judge's sense of sound policy.

Does such an ideological split explain the Sixth Circuit's 8-8 division?

Maybe. There have been reports that the Sixth Circuit is an ideologically riven court, and a quick glance at the lineup in Pontiac School District provides suggestive evidence that partisan attitudes towards NCLB may have colored the judges' assessment of the level of ambiguity necessary to trigger Pennhurst. Judge Sutton found the statute sufficiently clear and garnered the votes of fellow Bush (I or II) or Reagan appointees Boggs, Batchelder, Cook, McKeague, griffen, Rogers, and Kethledge. Judge Cole found the statute ambiguous under Pennhurst and won the support of fellow Democrats Martin, Moore, Gilman, White (a Clinton nominee who was re-appointed by Bush II as part of a Senate deal), Daughtrey, and Clay. Gibbons, a Bush II appointee, was the only cross-over vote.

Of course, it could just be a coincidence that the voting pattern of the judges correlates heavily with the voting pattern of Democrats and Republicans on whether NCLB has been adequately funded by the feds, with with Dems arguing that the feds have imposed unfunded mandates on the states and Republicans arguing that it is adequately funded. Judge Cole's opinion, after all, begins with the solemn reassurance that "this case has nothing to do with the ongoing debate between the various advocates of state versus federal educational funding. Rather, we need to answer only a straightforward question of statutory interpretation."

But a cynic can be forgiven for thinking that Judge Cole doth protest too much. I've taught statutory construction for three years at NYU Law School, and I can assure Judge Cole that there is nothing "straightforward" about the application of Pennhurst to these facts, because there is no straightforward way to define the level of ambiguity sufficient to trigger the canon. Instead, each sides' sense of what constitutes a "mandate ... not paid for under this Act" was likely colored by the partisan debates swirling around the meaning of "unfunded mandates" in party platforms, press releases, op-eds, and speeches. Indeed, one can hardly blame the judges for acting on their policy priors. Having been handed an ideological hot potato by Congress without any guidance about how to handle it, the judges had little choice but to fall back on their ideological predilections in construing a largely meaningless statutory phrase.

An alternative, of course, would be to develop a robust theory of federalism that could transcend the politics of particular issues by presenting a level of devolution that each faction could accept. The Left, after all, benefits from "unfunded mandates" like Title IX, and the Right benefits from "unfunded mandates" like the Solomon Amendments. Why not cut a deal in which the right level of federal control would be preserved over the long haul?

But that would require the judges to engage in policy-making from the bench, explicitly discussing the policy merits of decentralization theories by preserving enough centralization to keep each side satisfied by its level of power both when it captures the federal government and when it is huddled in various statehouses. Instead of actually engaging in such policy-making explicitly and honestly, we get the judicial pretense that the mush of Pennhurst somehow could resolve this dispute.

Displacement

As I emphasized in a recent piece, geography and territory are powerful regulatory tools.  They are often relied upon to confine and control disfavored or dangerous populations.  Racial-spatial segregation, Japanese internment, and Guantanamo Bay detentions are all examples of territorial regulation.  They all produced, at least initially, a form of constitutional displacement.  These and other displacements confined, segregated, and held persons outside the law's protective sphere.  Displacement made it more difficult in a literal sense to see the affected groups, and hence to see them as full persons under the law.

Much has been done to counter the effects of displacement.  The territoriality of official racial segregation has been condemed in the U.S.  Apologies and reparations have been issued for internment.  And the Constitution has been at least partially extended to those held at the Guantanamo Bay.

Two stories from today's news remind us that the practice of territorial displacement remains a threat to constitutional and human rights.  A lot has been said and written about the practice of rendition, particularly during the George W. Bush Administration.  An Italian court has convicted a CIA base chief and several operatives (in absentia) of kidnapping a Muslim cleric and transferring him to Egyptian authorities, where he claims he was tortured.  The convictions are likely to have little or no practical effect, however, either in terms of the individual defendants (other than, of course, the effects of restricting their ability to travel abroad) or the practice of rendition itself.  Although rendition to "black sites" does not seem to be part of current U.S. policy or practice, the Obama Administration has not entirely ceased rendition.  Rather, as this story suggests, the current administration prefers to call the practice of removing persons from a territory for purposes of interrogation "expulsion."  Owing to state secrets claims and other obstacles, the legality or constitutionality of rendition, whatever its form or label, is not likely to be adjudicated in U.S. courts.  Especially if there are future terrorist attacks, the practice is likely to be revived in its most aggressive form.

Meanwhile, Australian authorities are holding thousands of asylum seekers from Sri Lanka and Afghanistan on Christmas Island.  Sounds nice, right?  At least until one considers that Christmas Island is located nearly 1,000 miles from the Australian mainland, and that the facility that has been constructed to hold the asylum-seeking population is a detention center surrounded by 13-foot-high razor wire fences. In other words, it's a prison.  As reported by the New York Times:

But even as boats arrive every few days, advocates for refugees and even the government’s own human rights commission are urging the government to close the place down and sort the asylum-seekers on the mainland. They compare Christmas Island to Guantánamo Bay or describe it as a reincarnation of the many notorious prison islands in Australia’s convict history.

A lot of negative attention has been focused on U.S. detention policies, including those involving immigrants, over the past several years.  But fear and territoriality are a potent, and dangerous, combination across the globe.

Speech and the Identity Crisis

In terms of assessing speech, it is often helpful for audiences to know who is relaying a message and what, or who, might be influencing the content of the message.  But do audiences have a right to know who is sponsoring or otherwise influencing the information they are receiving?  Put negatively,when does the First Amendment prohibit the state from forcing speakers to disclose their identities or the identities of those who may have influenced their messages?  It may overstate matters to suggest that free speech has an "identity crisis."  But identity and sourcing issues seem to be arising in an increasing number of contexts.  Consider the following examples:

• Proponents of same-sex marriage in Washington state recently sought to force disclosure of the names of those who signed petitions to place the issue of benefits for same-sex partners on the ballot.  (A Ninth Circuit order to disclose the names was recently stayed by the Supreme Court.) 
• The FCC recently created new guidelines that require bloggers and others who publish on the Web to disclose any "material connections" they might have with sellers of products or services.
• After the tea party protests and health care town hall events this summer, proposals were again made to regulate so-called "astroturfing."  One proposal was to require disclosure of sponsorship or support for these events under lobbying laws.    
• Legislators and law enforcement in some states have stepped up efforts to regulate "flogs," bogus product reviews, and other forms of online deception.   
• Congress has long prohibited the use of federal funds for propaganda purposes.  Notwithstanding this prohibition, in recent years there have been a variety of bogus news accounts and other sourcing problems involving government departments and officials.

There are other examples, such as "ghost-writing" of scientific studies and various bogus lobbying efforts.  Some of what we might call speech-sourcing difficulties arise from, or may be exacerbated by, Web-based communication.  But sourcing issues are hardly a new concern.  Anonymous speech,deceptive trade practices, and government propaganda have all been around for a very long time. 

The law of disclosure or speech sourcing is not particularly well developed.  In general terms, the First Amendment provides some breathing space for anonymous speech.  Associational rights also prohibit the state from mandating disclosure in some circumstances, as when disclosure might lead to violence against a particular group.  There is a limited right not to be compelled by the state to speak.  And the press possesses a qualified privilege relating to the confidentiality of its sources.  Despite this cluster of rights, mandatory disclosure of speakers and sources has long been typical in some areas, such as campaign finance and deceptive trade laws.  And the spending prohibition relating to government proaganda is longstanding.  As more trade moves online and political records are retained and made publicly available, courts and legislatures will increasingly have to confront a difficult balancing of anonymity, privacy, transparency, and informational authenticity interests.  I may develop a paper on this subject in the relatively near future.  Some prelimimary thoughts on these issues, in the specific context of the Washington state referendum, after the jump.

   

The move to force disclosure of petition-signers' identities pits the state's interests in transparency and fraud-detection against the signers' interest, if any, in participating in the referendum process anonymously.  Asssuming, as the courts have, that signing a petition constitutes speech, the question in the referendum context may boil down to whether petition-signers have any expectation of anonymity when they participate in the referendum process.  The district court and Ninth Circuit both identified this as an issue of first impression; but they disagreed on the merits.  The district court applied strict scrutiny to the disclosure law, which it viewed as a direct regulation of political speech.  The Ninth Circuit applied intermeditate scrutiny; it disagreed with the district court's conclusion that the speech was "anonymous political speech."   

In the background, of course, is the fact that the identities of the petition-signers, if disclosed, would immediately be broadcast on the Web.  Proponents of disclosure argue that this would further critical democratic interests.  They argue that civil rights causes sometimes require "shaming" others into supporting the cause and that disclosure would facilitate an honest and transparent debate regarding the merits of the measure.  Not surprisingly, the state does not rely on the "shaming" argument.  As a factual matter, petition-signers do not necessarily support the measure; the question at the petition stage is whether it ought to be on the ballot.  In any event, the state obviously cannot justify a law on the ground that it facilitates shaming.  Transparent debate is a much weightier democratic value.  But why does one need to know the identity of each individual participant to have a meaningful debate?  Interest groups square off in the political arena all the time without having such knowledge.  As a practical matter, moreover, it is becoming increasingly difficult to enforce identity- and source-disclosure requirements.  If the state has a substantial or compelling interest in this context, it is the narrower, but important, one of ensuring that the referendum machinery functions properly.  The Supreme Court may have to decide whether that intererst outweighs any interest petition-singers may have in remaining anonymous.

  

Lots of birther action

A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen.

First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit. She filed a Notice of Appeal (which is ordinarily a one-page document) that contains the same provocative language ("pervasively extreme and outrageous (extrajudicial) prejudice and bias;" "political lynching") that got her in trouble in the district court. I really don't see her still having a law license when this is all over.

Second, and more significantly, Judge Carter in the Central District of California dismissed (Download 21808122-Judge-Carter-Ruling-on-MTD), largely on justiciability grounds, the most comprehensive birther lawsuit. There were 44 plaintiffs in various positions--state legislators, active military, inactive military, 2008 presidential candidates, and (my favorite) a man who claims to be related to Obama and to need to know where Obama was born to better understand the family medical history.

Some thoughts after the break.

The court's analysis is pretty straight-forward, interrupted by some efforts to take shots at the plaintiffs and at Taitz, who represented all but two of the plaintiffs. The court wove political-question doctrine concerns into the redressability prong of standing, which was analytically interesting (i.e., the plaintiffs lack standing because their claims are not judicially redressable because they raise political questions). I was surprised and a bit disappointed that the court did not make more of the House, having accepted the Electoral College votes for Obama pursuant to its constitutional authority under the Twelfth Amendment, having made the textually committed determination as to Obama's eligibility. The court talked about this, but ultimately focused on the Senate having exclusive control over presidential removal.

Interestingly, the court criticized plaintiffs' counsel for waiting until January 20 (after the Inauguration) to file the lawsuit, when the only remedy would be a politically impossible injunction removing Obama from office and ordering a new election. But this creates an interesting wrinkle, at least for the small-party candidates. The court held that they did have a unique injury-in-fact, but lost on the redressability prong. But if the redressability problem is absent in a pre-election action simply to order the California Secretary of State to remove Obama from the ballot, will the court have to find them to have standing? Stay tuned to summer 2012.

Finally, the court (not sure if this is surprising or not) did not raise the issue of sanctions. But it leveled several criticisms at Taitz--including a suggestion that she urged political supporters to call and e-mail the court to tell him to decide the case a certain way and a suggestion (based on affidavits) that Taitz suborned perjury. So could some Rule 11 activity be far behind? Maybe we should start a pool on when Taitz loses that law license.

The Original Documents by the Original Artists

Left: The 11th Amendment looks like an upturned contestant nametag from "The Price is Right." Right: The top staffer at the National Archives went wild with red ribbon and signed his name in big loopy cursive on the 27th Amendment.

Check out an online exhibit created by the National Archives: Charters of Freedom. There are wonderful high-resolution images of the Declaration of Independence, the original Constitution, and all of the amendments. To paraphrase the K-Tel record company – These are the original documents by the original artists. 

Some of them are awe-inspiring. The 13th Amendment, for instance, signed by Abraham Lincoln, is deeply stirring. 

Many of the documents are visually remarkable. The colors of the original Constitution remain vibrant after 222 years. And the 11th Amendment, signed by John Adams, appears on a funny kind of six-sided paper. The Bill of Rights, however, is sadly faded almost to the point of illegibility.

There are also a few substantive insights to be gained. Perusing the faint script of the Bill of Rights, you are reminded that our cherished First Amendment – what Charles Evans Hughes called "the very foundation of constitutional government" – was not intended to be first at all. In the original list of 12 amendments, our First Amendment was listed third, coming after two proposed amendments that weren't ratified at the time: one limiting congressional pay raises and the other prescribing ratios of population to members of the House of Representatives. 

And then some of the collection is, to my mind, kind of funny. 

Before our current era of sealing precious documents in humidity- and pressure-controlled encasements filled with inert argon gas, the Charters of Freedom received somewhat indelicate treatment. For instance, if you look at the 26th Amendment, you will notice that in 1971, an officious government worker kerplonked a "RECEIVED" date stamp on the front of the original. Thus, the document giving 18-year-olds the right to vote appears to have been treated with all the dignity of a Selective Service postcard. 

Contrast that with the pomp accorded the next amendment, the 27th. This amendment, limiting congressional pay hikes, is what would have been the first amendment if it hadn't taken 203 years to ratify.  

When it finally came in from the cold, the National Archives laid out the 27th Amendment with sumptuous typography on paper bedecked with a glorious gold seal and a generous length of dark red ribbon. The document is truly resplendent. It could make your law-school diploma turn green with envy. 

The funniest bit of all is probably the 21st Amendment – the repeal of Prohibition. It's not the paper itself that is remarkable. It's the fact that it is included in the National Archives' Charters of Freedom exhibit. From the context in which it is presented, we can confidently say that it is the official position of the National Archives that the document supplying America with the right to drink is a "Charter of Freedom."

Reading these original documents, I suppose, has limited usefulness. It allows smart-alecks like me to deride the original Constitution for sloppy penmanship. Other than that, seeing our cherished freedoms reduced to ghostly, fading words on fragile pieces of parchment is a reminder that our civil rights and civil liberties, if they are to endure, must be the subject of never-ceasing vigilance by our citizens and lawyers. 

Or, as the Beastie Boys said – perhaps having in mind one Charter of Freedom in particular – "You've got to fight for your right to party."

MCA 2009: (Accidentally) Opening the Collateral Review Floodgates?

Any moment now, the National Defense Authorization Act for Fiscal Year 2010 is going to become law, and with it, Title X, Subtitle D thereof, better known as the Military Commissions Act of 2009. (I'll try to post authoritative text once I see it). [Update: I'm reliably informed that this is the language that passed the Senate Thursday night.]

There is a lot to say about the new Military Commissions Act, and both how it differs from and how it is distressingly comparable to the Military Commissions Act of 2006.  In particular, I am disappointed that the 2009 MCA doesn't make much more than a token effort to harmonize either the personal or subject-matter jurisdiction authorized by Congress in 2006 with that which is recognized under international humanitarian law, even though my own view is that Congress lacks the constitutional authority to subject to military jurisdiction (1) individuals who are not belligerents under IHL; for (2) offenses that are not violations of the laws of war.

To be sure, folks may disagree with me on these points, but I think it's at least an open question whether Congress may confer jurisdiction over military commissions that is at least arguably inconsistent with IHL.

And yet, as I've written about previously, one of the most distressing features of the 2006 MCA is the extent to which it precludes "collateral" challenges to the jurisdiction of military commissions, through the provision that was codified at 10 U.S.C. § 950j(b):

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

There is fairly compelling pre-MCA precedent that individuals may use habeas corpus collaterally to attack the jurisdiction of a military tribunal before trial (precedent that arguably calls the constitutionality of this provision into question). Nonetheless, two different district court judges threw out such challenges to post-MCA commissions (in Hamdan and Khadr, respectively), holding that any such claims had to be brought on post-conviction appeal.

Well, here's the punchline: The MCA 2009 rewrites 10 U.S.C. § 950, and leaves what was 10 U.S.C. § 950j(b) out altogether. Not only that, but the MCA 2009 reincorporates what had been 10 U.S.C. § 950j(a) word-for-word as new 10 U.S.C. 950i, suggesting that Congress did not simply forget this provision altogether.

Why does this matter? Because as a result, there is no longer a statutory bar to a Guantanamo detainee mounting a pre-trial challenge to the jurisdiction of a military commission. As a result, any defendant with such a claim may now go directly to the D.C. district court (or, as in bin al Shibh, pursue mandamus relief in the D.C. Circuit), rather than waiting for proceedings in the military commission to run their (slow and unpredictable) course.

I, for one, am glad that the serious jurisdictional questions raised by the MCA might finally receive a full airing, whatever their ultimate answer turns out to be.  That being said, it's hard to believe Congress actually intended this.. Floodgates, consider yourselves opened.

The Supreme Court of the United Kingdom

This month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country. 

This is no small break with tradition. Remember, this is a country where lawyers still wear wigs in the courtroom. Until this month, the House of Lords had been the tribunal of last resort for most cases since 1399, which was when the House of Commons stopped hearing petitions for reversal from lower courts. In 1876, the judicial authority of the House of Lords was modernized when professional judges were appointed as Lords of Appeal in Ordinary to carry out the judicial functions of the House of Lords. But these law lords maintained a legislative role by having the power to vote in parliament – though they rarely did so.

All that has changed. As of this month, the law lords are now “justices.” And although the current justices retain their title of “lord,” the Supreme Court members are now disqualified to vote in the House of Lords. Moreover, as absences occur on the new Supreme Court, seats will be filled by judges who may not bear the title of “lord” at all.

For American lawyers and law professors, the creation of the new U.K. Supreme Court provides some cause for reflection: Our American legal tradition evolved from the U.K.’s. Our common law tradition, our courts, and our ideals of jurisprudence all come in large part from the Mother Country. It strikes me as a tremendous compliment to the USA that, in the 21st Century, traditions appear to be flowing back across the Atlantic. The U.K. has followed the American exemplar not only in concept, aiming for a strictly independent judiciary, but in in name as well, using the appellations “Supreme Court” and “justices.” 

Now, let me admit that I am not a scholar of British law. Thus, I cannot say how much of the new U.K. court structure is directly modeled on the U.S. example. (If anyone can chime in on to what SCOTUK and the Constitutional Reform Act of 2005 owes to SCOTUS and the U.S. Constitution, I’d be grateful to hear it.) But I, for one, take it as a sure sign of Ameriphile sentiment that Britain chose to call their new high court by the same name as ours – especially since the U.K. has such a tradition of super cool names for judicial tribunals: “Privy Council,” “Exchequer of Pleas,” and “Court of the Queen’s Bench” to name just a few.

A couple of interesting trivia bits to point out: 

• The crest for the new court is built around a Greek omega – a reference to the institution’s status as the court of last resort. 
• The court has been given spectacular new digs at a renovated courthouse, Middlesex Guildhall, which is next to the Houses of Parliament and Westminster Abbey. 
• The U.K. Supreme Court has colorful pdf-based forms for aspiring litigants, such as a very friendly looking fill-in-the-box cert petition (called an “application for permission to appeal”) with instructions on where the completed form can be e-mailed. (Anyone who has dealt with the PACER system or the elaborate document formatting rules for U.S. appeals courts might find the British approach highly refreshing.)

ABOVE: The home of the new Supreme Court of the United Kingdom, Middlesex Guildhall.

The role of lawyers in making the law

Slate's Dahlia Lithwick has a (as usual) good summary of today's oral argument in Perdue v. Kenny A., which considers how far above the baseline a court can go in awarding attorneys' fees to a prevailing civil rights plaintiff. Here, the district court tacked another $ 4+ million onto the lodestar, on a specific finding that the quality of plaintiff counsel's lawyering was so great. It could lend some interesting insight into the future of civil rights attorney fees.

There were some interesting exchanges involving Chief Justice Roberts about the role attorneys play in the process of making the law and whether good lawyering truly affects the outcome and how. Roberts commented that "The results that are obtained are presumably the results that are dictated or command or required under the law." He later asked "[W]hat does a judge say when you have achieved extraordinary results. That if you weren't there, I would have made a mistake on the law?"

These exchanges connect to the Roberts view of judging (last seen in the Sotomayor hearings) as mechanical application of obvious law to fact to reach the one clear answer. But his comments seem to suggest that, in his world view, lawyers do not have a significant role to play, since what they do does not (or at least should not) affect the court finding the "right" answer. Otherwise, why wouldn't the quality of the lawyers and their lawyering matter? This view is ironic, of course, because the courts have raised adversariness to an essential component of judicial decisionmaking and one of the cornerstones of whether a case is even justiciable--courts must decide cases in concrete factual situations involving truly adverse parties. Standing doctrine insists that courts should not act unless there are adverse parties with the expertise, competence, and interest to litigate vigorously--generally with the expertise and interest coming from counsel. But why do we demand vigorous litigation? Not for its own sake. Presumably because it will be informative and convincing to the court; the better the vigorous presentation of evidence and arguments (by lawyers), the more it helps courts reach the "right" answer. If that is true, then the premise of Roberts' questions seems wrong.

I can understand Roberts being uncomfortable with the idea that the brilliant lawyer will win out, regardless of law or fact (recall the cynical saying that juries simply find in favor of the lawyer they like more). But Roberts seems to be going much further, saying that the manner and quality in which arguments are made does not affect how the court comes to view the law (because there is only one right answer to be mechanically found) and facts or the conclusions courts will reach. But if so, why bother having lawyers?

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.

Comma or Smudge?

As a follow up to my smart-alecky post on the poor drafting of the U.S. Constitution, I should point out that at least one interlineation in the document has led to real confusion about the document’s actual content.

As I pointed out yesterday, in Article I, Section 3, the language “is tried” is inserted into the provision on Senate procedure in the case of presidential impeachment. The text thus reads: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The confusion is about whether the interlineation inserted a comma after “is tried”.

The U.S. Government Printing Office, in its published transcription, takes the view that there is no comma between “is tried” and “the Chief Justice”.

The National Archives, on the other hand, in its transcript, includes the comma.

My view is that the sentence includes the comma. The ink mark at issue looks like a comma, not like a smudge, and it makes grammatical sense for there to be a comma in that location. Here, take a look.

It is in all likelihood a distinction without a difference. But it is nonetheless fascinating that different agencies of the federal government do not have identical understandings of the literal text of the Constitution.

The U.S. Constitution: Not All that Well Written

I mean, it’s fine as a first draft, but if I were a law-firm associate, I wouldn’t turn it in to a senior partner without putting in a lot more work.

I am not a legal writing professor, and I suppose it’s a good thing I'm not. The fact is, if it were turned in to me as homework, I could not, in good conscience, give the United States Constitution better than a B-minus. And that’s with a healthy dose of grade inflation already factored in.

First of all, let’s look at the handwriting. It’s sloppy. You may not have known this, but the Constitution contains numerous interlineations.  In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy:

The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”  

Precedent suggests that the Constitution may be invalid on grounds of sloppiness.

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Look, I can only imagine what a pain in the a** it would be to write out a long legal document on calfskin with nothing but an inkwell and a pen made out of a feather. Honestly, I couldn’t do it. But then again, I didn’t take the job. According to historians, it was a fellow named Jacob Shallus who did take the job.

And, honestly speaking, he kind of phoned it in.

There are a total of four interlineations in the original Constitution.[1] What’s worse, Shallus did a “my bad” about the mistakes, listing them next to the signature block on the past page – but, incredibly, he only noted three of the four interlineations! How lazy do you have to be to fail to count up all the dents you tried to knock out of your own work?

Okay, so the Constitution’s penmanship is annoying. But is it a real problem? Precedent suggests that it is. Frighteningly, the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.

In Antonelli v. Senate Realty Corp., the D.C. court lowered the boom on a slapdash deed of trust with more than a note of scorn: “Certainly this document on its face has been so altered by interlineation and hand-printed additions as to make it legally obnoxious and unacceptable.”[2]

Yikes. Could it be that our Constitution is “legally obnoxious”?

Under the eyes of the law, perhaps. There is no Supreme Court opinion directly on point, so, for now, it is an open question.

One thing we do know is that the Constitution was a rip off. The U.S. government paid Shallus the princely sum of $30 for his calligraphy services.[3] That may not seem like much, but this was 222 years ago. Using the unskilled-labor inflation index, $30 in 1787 is equivalent to $10,694 today.[4]

That kind of government waste makes a $640 toilet seat for the Pentagon seem like a bargain.

Shallus’s bang-up job also included erasures,[5] a misspelling,[6] and wildly inconsistent capitalization.[7]

Now, I haven’t even started to talk about the actual text.

The text of the U.S. Constitution is replete with ambiguity. And I say that not because the Constitution is a great document that is at the center of a great story about great struggles over great freedoms and other great stuff.[8] It is because, at least in large part, the Constitution is a maze of passive voice, mismatched grammatical constructions, and awkward phrasing.

Take a look at the Second Amendment:

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

What in the heck is that supposed to mean?

Surprise, surprise: People disagree.

Analyzing the text, we can confidently make two observations: (1) If the amendment was intended to say that states have the right to give guns to their national guard units – and that’s the extent of the right – then the text clearly wouldn’t have been phrased the way that it was. (2) If the amendment was meant to give individual citizens the right to possess guns, without being part of a state-run militia, then the text clearly wouldn’t have been phrased the way that it was.

That leaves us with only one sure conclusion: The drafters shanked this one big time.

Incredibly, over thousands of pages of the United States Reports, our Supreme Court has not once used the words “poorly drafted” to describe the Constitution.

Yes, I checked.

We may need to revisit that hallowed quote of Ben Franklin, who, walking back from Independence Hall, was asked by a Philadelphia resident, a Mrs. Powel, what resulted from the Constitutional Convention.

Famously, Mrs. Powel heard Franklin say, “A republic, if you can keep it.”

It seems quite possible that Franklin’s actual words were, “A republic, if you can read it.”

---

[1] U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).

[2] Antonelli v. Senate Realty Corp., 230 F.Supp. 776, 779 (D.D.C. 1963).

[3] See Irvin Molotsky, N.Y. Times, September 17, 1987 at http://www.nytimes.com/1987/09/17/us/the-constitution-it-s-200-years-old-and-it-certainly-has-been-around.html.

[4] See Samuel H. Williamson, “Six Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present,” MeasuringWorth (2009) at http://www.measuringworth.com/uscompare/.

[5] U.S. Const. art. I, § 2 (“thirty”); art. I, § 3 (“may make”).

[6] U.S. Const. art. I, § 10 (“it’s” in “except what may be absolutely necessary for executing it’s inspection Laws”).

[7] See, e.g., U.S. Const. art. I, § 2 (“vacancies” and “Vacancies”). See also art. I, § 8 (“credit” in “To borrow Money on the credit of the United States”) and art. IV, § 1 (“Credit” in “Full Faith and Credit”); art. I, § 2 (“Executive” in “the Executive Authority thereof shall issue Writs of Election”) and art. II, §1 (“executive” in “The executive Power shall be vested in a President”).

[8] Though it is, of course.

[Cross-posted on The Backbencher.]

Corfield v. Coryell and the Privileges and Immunities of Citizens in the Several States

In a previous post, I explained how antebellum legal and political use of the paired terms “privileges and immunities” generally involved a reference to a limited set of specially conferred rights.  The phrase was used not as a reference to natural rights belonging to all, but instead referred to a limited set of rights conferred upon a particular person, group or institution.  This concept of “specially conferred privileges and immunities” took on a more defined meaning when used as part of the more specific term of art: Article IV’s protection of “Privileges and Immunities of Citizens in the Several States.”

Today, the best known judicial discussion of Article IV is Justice Bushrod Washington’s opinion in Corfield v. Coryell (1823).  At the time Corfield was decided, however, a line of judicial precedents had already established a consensus understanding of Article IV’s Privileges and Immunities Clause.  In the 1797 case Campbell v. Morris, for example, Maryland’s Judge Chase explained:

It seems agreed, from the manner of expounding, or defining the words immunities and privileges, by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one. It is agreed it does not mean the right of election, the right of holding offices, the right of being elected. The court are of opinion it means that the citizens of all the states shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected.

According to Judge Chase, Article IV provided sojourning citizens from other states equal access to a limited set of state-conferred rights. 

This same idea was echoed by later influential jurists such as New York’s Chancellor Kent in cases like Livingston v. Van Ingen (1812).  In fact, by the time Justice Washington decided Corfield in 1823, this had become the generally accepted meaning of the Privileges and Immunities Clause.  In Corfield, Justice Washington echoed Judge Chase’s earlier point about the “particular and limited” set of rights protected under Article IV by limiting privileges and immunities to just those which were considered “fundamental” and which all states had protected since the time of the Founding (a set of rights which did not include the right of Philadelphia boatmen to gather New Jersey clams).  Washington, like Judge Chase before him, understood Article IV as protecting only a special (and limited) set of state-conferred rights.  Later antebellum cases read Corfield as applying the same principle as that articulated in Campbell and Livingston—indeed, the cases were often cited side by side.  When Thomas Cooley published his treatise on Constitutional Limitations in 1868, for example, he adopted this same understanding of Article IV—and cited both Campbell and Corfield.

In sum, the antebellum jurisprudence of Article IV was remarkably consistent—remarkable if only because of the skewing effect that the issue of slavery had on so many other areas of law.  Although some contemporary scholars argue that Washington’s opinion in Corfield referred to a set of natural (and national) privileges and immunities of United States citizens, this is not how the case (or Article IV) was broadly understood prior to 1868.  Although there were a few alternative views of Article IV (with some courts reading the Clause as a limitation on the powers of the federal government), the vast majority of antebellum judicial opinions that addressed the Privileges and Immunities Clause (both North and South, and both before and after the Civil War) all followed the general approach of Judge Chase’s 1797 opinion in Campbell: Article IV provided sojourning citizens equal access to a limited set of state-conferred rights.  Corfield was just one of many antebellum cases which stood for this basic proposition. 

On the other hand, at the same time courts were grappling with the meaning of Article IV’s “privileges and immunities of citizens in the several states,” an entirely separate line of legal thought was emerging regarding the meaning of “privileges and immunities of citizens of the United States.”  This legal term of art—one which closely resembles the language of Section One of the Fourteenth Amendment--will be the subject of my final post.

The Constitution in 2030

My contribution to the blog discussion of The Constitution in 2020 is up here, in advance of next week's conference, on which I'll be speaking on the individual rights panel along with Rick; I'll have another post in a few days specifically targeted to First Amendment questions raised by the book.  In this post, I focus on the project as a whole, asking whether it is interested in "merely" putting some version of progressive constitutionalism into practice on the courts, or whether it is interested in proposing some genuine new vision of constitutionalism; if it's the latter, I argue, 2020 is too early a date for this to be possible.  Here are some snippets:

There are revolutions, and then there are Revolutions. The big, capital-R type Revolutions are the major sea changes in the way we think and act or in our political structures, the moments in which some concept moves, seemingly overnight, from being unthinkable to being incontestable. Then there are revolutions, in something like the literal sense: the same old turning of the wheel, bringing the return of some set of ideas or political views to dominance, but with the certainty that its moment will inevitably pass, and return, and pass and return, and so on. These small-r revolutions are the stuff of our usual politics. They are one reason (the other may be summed up in a name: Keith Moon) why the Who’s “Won’t Get Fooled Again” still sounds fresh.  “Meet the new boss….”

What do the authors of The Constitution in 2020 want: a revolution, or a Revolution? Are they interested in something genuinely new, a real paradigm shift in how we conceive of the Constitution? Or are they really just looking for a regime change, one that will bring them the results they want but that is destined to be merely temporary? . . . . [O]ne gets the sense that at least the editors of this collection would like to frame their project in more Revolutionary terms.

If that is actually the case. then I want to suggest that The Constitution in 2020 is the wrong title for the book. Small-r revolutions, mere turnovers in power, happen relatively frequently.  Big-R Revolutions are a different matter altogether. They do not happen often or overnight. Paradigm shifts, like rockslides, only appear to happen all of a sudden. In reality, they develop slowly before they happen quickly. . . . 

The Constitution in 2020 looks only a little more than a decade ahead. In that short time, we might see some small-r revolution on the federal courts. We might see the outs become the ins, and liberal rulings might replace conservative ones. But we are unlikely to see any Revolutions in so short a time. Science fiction in the 1950s looked a couple of decades ahead and imagined that we would soon be moving around with jetpacks and serving our robot overlords; by the 1970s, all that managed to happen was that we replaced our eight-tracks with cassette players. The same thing is likely to prove true if we try to imagine a genuinely Revolutionary movement in constitutional interpretation but place it just around the corner, temporally speaking. . . . 

If the editors and authors of The Constitution in 2020 want to encourage a real Revolution in constitutional law, . . . they will need to start by rethinking their title. On the other hand, if all they want is a revolution – if all they really care about is the development of more or less the same old ways of thinking, but from a progressive rather than a conservative perspective; if they just want to be the “new boss” for a while, with a corresponding change in outcomes – then 2020 seems like a reasonable date to shoot for. That is time enough for the new guard to take over.  Unless we are just motivated by politics and a concern with outcomes in particular cases, though, that does not seem so terribly worthwhile a goal. It is certainly a short-sighted one: if all we are concerned about is a shift in who holds the reins of power, instead of a real shift in how we think about the Constitution, then the “progressive” Constitution of 2020 will be replaced by a conservative Constitution in 2040, and so on. Instead of planning for a constitutional revolution in 2020, perhaps we might instead try to imagine what a real constitutional Revolution might look like – in 2030. 

The Moment of Truth for Military Commissions, and the Jurisdictional Bar that Might Get in the Way...

How Appealing and SCOTUSblog have both already noted the petition for a writ of mandamus filed yesterday in the D.C. Circuit by military lawyers for Ramzi Bin Al-Shibh, seeking to have some of the central provisions of the Military Commissions Act of 2006 invalidated -- and seeking, in effect, to bring the military commission process to a screeching halt.  As the petition argues,

Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” -- in the military judge’s own words -- “in which uncertainty is the norm and where the rules appear random and indiscriminate.”

I happen to think there is substantial merit to many of the substantive arguments advanced in the petition, for reasons I hope to write more about next week.  In the interim, though, I wanted to flag what I suspect the government's response will harp upon -- the argument that the D.C. Circuit lacks jurisdiction to even consider the petition's claims.

Although the Military Commissions Act confers jurisdiction upon the D.C. Circuit to review final judgments of military commissions, it constrains both the scope and timing of that jurisdiction (see 10 U.S.C. 950g). Mandamus might lie in any event under the All Writs Act (if the underlying claims have merit), since there is a solid argument that it would be appropriate to protect the appellate jurisdiction that the MCA already gives the D.C. Circuit after the fact. 

The problem is a separate provision of the MCA -- 10 U.S.C. 950j(b):

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever . . . relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Bin Al-Shibh's petition offers several arguments for why 950j(b) may not apply to his case.  If it does, though, it may well be unconstitutional. I have argued elsewhere that part of what the Suspension Clause protects is a right to collaterally attack one's amenability to military jurisdiction--and to do so before trial, to vindicate one's right not to be tried. If that's true (the Supreme Court has often hinted at this, but never explicitly so held), then 950j(b) would be unconstitutional to the extent that it precludes pre-trial challenges that go to the commission's jurisdiction.

So, this may be the moment of truth for military commissions--or, at the very least, for whether those who are protected by the Suspension Clause have a concomitant right to contest the jurisdiction of a military tribunal before being subjected thereto...

Pleading and al-Kidd

Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal.

The majority tried to apply a nuanced, but ultimately more-forgiving approach to pleading. It rejected as conclusory and insufficient the allegations as to Ashcroft's involvement with al-Kidd's conditions of confinement, for all the reasons discussed in Iqbal itself.

But otherwise, the court does not spend much time analyzing the Fourth Amendment allegations under Iqbal. The court merely says the following in finding the allegations sufficient:

al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation.

The real detailed Iqbal analysis was over the § 3144 claim--that Ashcroft enacted and supported a policy of violating the material-witness statute. The court emphasized how much more particular detail--specific, widely publicized statements by Ashcroft, FBI Director Mueller, and others about the pretextual and expansive use of § 3144--there was in al-Kidd's complaint as compared with the complaint in Iqbal. And clearly detail is demanded. From that detail, the court was willing to draw a number of favorable inferences as plausible and thus consistent with Iqbal and Twombly. For example, the court read the complaint to plausibly allege that Ashcroft knew of and did not stop misuse of the statute by underlings, based on the public nature of that misuse and statements explaining it. The court also read the complaint to plausibly allege that Ashcroft purposely instructed his underlings to do so, based on his public statements about the import of aggressive use of § 3144 in the War on Terror.

One lesson of this case is that specific, detailed examples of conduct and events are necessary to allege (inferentially) things such as knowledge, purpose, intent, agreement, and other state of mind. The allegation that someone "knew" X or did something "because of" Y almost certainly is not going to be sufficient. This is consistent with the Ninth Circuit's decision a few weeks ago in which allegations that Secret Service agents did something for viewpoint-discriminatory reasons were disregarded as conclusory.

I believe this undercuts arguments made by Adam Steinman in a CoOp post and in a great new article. He argues, for example, that in Iqbal, the following would be sufficient, without the need for greater detail (when they ordered it, the form it took, how they know):

Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.

But after reading the Ninth Circuit's analysis here (and in Moss), I am not so sure.

Another lesson is that plaintiffs are going to have much less success with a claim involving conduct that received less publicity and media coverage than this one. Al-Kidd could point to specific statements in the public record allowing the inference of an intentional policy or high-level knowledge. Unlike many (most?) civil rights claims, he did not need discovery to learn about specific instances or acts that support his claim. But many plaintiffs will not be so fortunate. Indeed, that divide between classes of cases seems inconsistent with the use of Bivens and civil rights damages litigation as a supplemental tool for investigating government misconduct; discovery (and the opportunity for it) is supposed to be part of that.

Finally, this opinion demonstrates the tremendous, and seemingly inconsistent, discretion courts wield in deciding 12(b)(6) motions, especially when considered in conjunction with recent Ninth Circuit decisions in Moss (granting dismissal under Iqbal) and Padilla v. Yoo (denying dismissal).

Official liability for abuse of material witness warrants

Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities.

The plaintiff, a natural-born U.S. citizen who converted to Islam, was arrested on a material-witness warrant in March 2003, allegedly because of contact he had with Sami Omar Al-Hussayen and an Islamic charity, the Islamic Assembly of North America, that purportedly gave financial and other support to radical Islamist activities. Al-Kidd was held (in custody or supervised release) for 15 months, although never called as a witness in Al-Hussayen's trial (Al-Hussayen was acquitted). The warrant was obtained on false, incomplete, or omitted information and al-Kidd alleges that the purpose in seeking the arrest was to question and gather more information on al-Kidd.

Coming as it does on the heels of Ashcroft v. Iqbal, where the Supreme Court created a difficult road for victims of unconstitutional War-on-Terror tactics to seek damages against Ashcroft and other high-level executive-branch officials from the Bush Administration, the fact that this case was allowed to go forward has drawn some media attention.

There is a lot of interesting stuff going on here, that I will hit here and in a couple of later posts.

Absolute Prosecutorial Immunity

The court held that, in establishing and overseeing a policy of using material-witness warrants to investigate or simply detain the target of the warrant, Ashcroft was acting as an investigator rather than a prosecutor (as were his underlings). The court recognized that the ordinary, appropriate use of material-witness detention in the wake of an indictment and in preparation for a forthcoming trial would be prosecutorial. Here, however, the court added a limited purpose element to the immunity analysis; while a prosecutorial function committed with an improper purpose does not strip a prosecutor of immunity, the "immediate purpose" behind an act helps define whether it is investigative or prosecutorial and an act done with an immediate investigatory purpose is investigative.

This is a fine, but important line. The court looked at largely objective facts in making this determination--the temporal distance between the warrant and the trial; the government's investigative history with the target of the warrant; what the government questioned the witness about while in custody (who they asked about and what conduct they asked about); and whether he was called to testify at the eventual trial. The complaint also contained public statements by DOJ officials (including Ashcroft) about the expanded use of material-witness warrants for largely investigative purposes. On these facts, at least at the 12(b)(6) stage, Ashcroft was functioning as an investigator (or the supervisor/policymaker over investigators).

Interestingly, the majority also responded to concerns about unadorned allegations of non-prosecutorial motive by plaintiffs by emphasizing the amount of detail in the Complaint. This is an Iqbal-triggered concern, obviously. And I will talk about this more next post.

But here, it reflects an unfortunate pleading confusion. Prosecutorial immunity is supposed to be an affirmative defense, with the burden of proof (as the court seems to acknowledge) on the defendants. But the burden of pleading also should be on the defendant. Thus, the plaintiff should not have to plead that the challenged acts were non-prosecutorial and why, consistent with Iqbal or otherwise. It should be on the defendant to plead that the acts were prosecutorial. The language of the decision seems to convert anticipation and rejection of the defense into an element of the plaintiff's claim. This confusion was sort of an underlying issue in Iqbal; it is now explicit here.

Qualified Immunity

The court next held that Ashcroft was not entitled to qualified immunity. True, it was not clearly established in 2003 that misuse of the material-witness procedures violated the Fourth Amendment. But, the court said, dicta in Ninth Circuit law at the time suggested that material-witness detentions must be linked to a primary need to obtain testimony. Further, the definition and history of probable cause under the Fourth Amendment were clearly established, which should put government officials on notice that arresting someone on mere suspicion of criminal activity runs afoul of the Fourth Amendment. Finally, the court pointed to a 2002 district court case that rejected this use of material-witness detention as an investigative tool, calling out Ashcroft by name.

There is a tone to the opinion that this use of detention was akin to a government policy of selling babies who are in foster care. This is Judge Posner's classic example of something that is so glaringly, obviously unconstitutional that the law is clearly established on general principle regardless of case law, because a case on all fours never will arise.

Supervisory Liability

There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.

Damages for violating § 3144

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

In the next post, I will discuss the issues in the case relating to Iqbal and pleading under Rule 8(a).

How Kurt Lash cured me of originalism

I am a great admirer of Kurt Lash's work on the Ninth Amendment. His series of articles on the subject has convinced me that, if one focuses on its "original public meaning," the Ninth Amendment is best understood as a federalism-protecting measure -- that is, a rule requiring a narrow construction of Congress’ powers to protect the right of the people to collective self-government through their state governments. Like some other sophisticated originalists -- Caleb Nelson, for instance -- Lash is painstaking and fair-minded about evidence and, best of all, original in his arguments. So Lash's work and his recent post provide me with a sort of acid test of whether I could ever subscribe to originalism, seen in its best light. Precisely because Lash's originalism is so good, my dissatisfaction with his argument is explicable only on the ground that even the so-called New Originalism about "original public meaning" is too arid to constitute a satisfying theory of meaning.

Here is my problem with this whole semantic enterprise of "original public meaning." The inquiry into such meaning requires sociology, not lexicology: Constitutional terms like "the rights ... retained by the people" refer not to some trans-historical nugget of meaning, some referent like the Potomac River to which "the Potomac[k] River referred in 1791 and still refers today. Instead, such terms are ideologically loaded markers referring to what Wittgenstein would call a "form of life" -- a vast array of values, beliefs, and points of salience that have often vanished long ago. Assuming that some judge with the powers of Quentin Skinner actually succeeded in reconstructing this array of beliefs, she would never enforce it, because it would be too unpalatable to the modern society that, in the long run, chooses the judges.

Take, for instance, Lash's effort to reconstruct the meaning of the Ninth Amendment's phrase, "rights ... retained by the people." Lash argues -- correctly, in my view -- that this phrase refers (inter alia) to the people's collective rights of self-government. But why believe that such rights are threatened by Congress’ powers but not state legislatures’ powers? One must answer this question in order for the idea of "narrow construction" to have any content. The answer, however, is rooted in a sociology that no modern judge would ever enforce -- specifically, the Country Party suspicion of the influence that chartered corporations (the South Sea Company, the Bank of the United States, the Society of Useful Manufactures, etc) allegedly wielded in metropolitan venues like London, New York, or Philadelphia. The idea was that a cabal of well-connected financiers tended to gain special monopolistic privileges from the national legislature (especially privileges to underwrite public debt) but not at the state level, where muddy yeoman in small-town state capitals (Albany, Harrisburg, Richmond, etc) held sway.

If one has such a conception of centralization the threat to “liberty,” then it is easy focus on subnational government as the antidote. It is also easy to imagine a judicially manageable doctrine that would implement the sociology: Do not let Congress, for instance, charter banks that are majority-owned by private investors and that enjoy immunity from state taxation. Andrew Jackson, indeed, enforced precisely such a constitutional rule.

But does anyone seriously expect a modern court to enforce such a theory today, when there are only 27 million people (out of roughly 300 million) employed rurally and only 2 million family farms? Does anyone expect federal courts strictly to scrutinize federal laws creating or regulating corporations or the banking sector (the special target of Country Party and, later, Jacksonian, wrath)? Of course not. So Lash’s theory of the Ninth Amendment, stripped of its sociological soul, boils down to a vague and non-justiciable requirement that Congress’ powers be “narrowly” construed (whatever that means), without any accompanying account of what such narrow construction is supposed to accomplish.

Could there be a sociologically sensitive originalism? Sure, but it would so enlarge the set of sources that judges would need to consult that the original judge-constraining purpose of the theory would be lost. Instead, one would enter some Larry Lessig-style realm of free-wheeling "translation" of 18th century Country Party norms into 21st century analogues. Country Party priorities in the 18th century, for instance, might translate in the 21st century into an anti-preemption canon of construction, especially if the state law being preempted is regulating a financial corporation. Lash's articles reject such fancy-pants translation and choose choose parsimony of historical sources over sociological depth, consulting only one piece of secondary literature, Saul Cornell's excellent book on the Anti-Federalists).

In short, originalists need to choose between their institutional and interpretative priorities: Constrain judges? Or accurately capture the sociological underpinnings of language? The two goals do not mix, which makes the theory, even when as well-executed as it is in Lash's hands, a dead end for me.

Prof. Stone (again) on "our . . . Catholic justices"

Prof. Geoffrey Stone returns, here, to the phenomenon of "our . . . Catholic justices."  A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Prof. Stone caused some controversy with his assertion that the justices in the majority -- all Catholic -- had "failed to respect the fundamental difference between religious belief and morality", a distinction that "[t]o be sure, . . can be an elusive distinction, but in a society that values the separation of church and state, . . . is fundamental."

I responded, here (see also this), and disagreed.  I thought, and think, that the majority was both reasonable and correct in concluding that the Constitution permits Congress to regulate abortion in the way that it did, and that their decision did not involve the imposition of specifically Catholic "religious belief."

In his latest piece on the subject, Prof. Stone's proposes a number of arguments, grounded in data about justices' voting in abortion-related cases, intended to support, if not to "prove[]", his initial assertion that the Catholic justices' religion best explains their vote to uphold Congress's enactment. 

I'll leave it to readers, for the most part, to assess these arguments, but would suggest that Prof. Stone's claims seem at least as consistent with the hypothesis that "non-Catholic justices are more likely than Catholic justices, in abortion-related cases, to give in to the temptation to impose their policy preferences and disable politically accountable actors through implausible readings of the Constitution" as with the hypothesis that "Catholic justices, in abortion cases, tend to rely on specifically Catholic beliefs and morality rather than on the Constitution's meaning."  That is, the observation that Catholic justices tend to vote against the constitutionalization or expansion of abortion rights should raise not only the (in Prof. Stone's words) "awkward" question whether they are imposing their religious beliefs, but also the question, "why are the non-Catholic justices more likely to get it wrong, when it comes to abortion?"  The merits matter, no?

UPDATE:  Geof Stone and I have had some conversation about our respective posts, and he kindly agreed to let me share the substance of this conversation.  

Geof wrote: 

I disagree with your post in the following way: I don't believe it is illegitimate for judges to consider their policy beliefs in interpreting the Constitution (although I agree that should not be the touchstone for constitutional interpretation). But I do believe it is constitutionally illegitimate for judges to consider their religious beliefs in interpreting the Constitution. In my view, consideration of religious beliefs is on a par with consideration of partisan political beliefs. That is, it is (in my view) illegitimate for a judge to decide a case because the result will benefit the Democrats. Similarly, I believe it is illegitimate for a judge to decide a case because the result reflects his religious belief.

Then, I responded:

In my view, any distinction between a judge's "policy" beliefs (which a judge may consider) and her "partisan political beliefs" or her "religious beliefs" is going to be, in real cases, ephemeral, and probably in the eye of the beholder.  In any event, the view that the Constitution permits (and, as a matter of policy, the law should impose) reasonable regulations on abortion is not, in my judgment, a "religious belief"; it is no more "religious" anyway than the view that the Constitution permits (and the law should impose) regulations of employment discrimination in the work-place.

 

And, Geof replied:

 

 

First, I agree that is will often be difficult for a third-party (such as a court) to know whether to know whether an individual is acting on the basis of legitimate or illegitimate considerations, as long as there is a plausible legitimate justification. For that reason, courts generally avoid inquiries into actual subjective motivation, and for the most part I agree with that doctrine. But what I'm talking about here is not whether a third-party (such as a court) should determine whether an individual (in this case, a judge) is acting on the basis of legitimate or illegitimate considerations. Rather, I'm arguing that individuals themselves should attempt to be attentive to this concern and should be introspective and self-critical about it. Consider a Southern judge in the 1950s who acquits a defendant charged with a lynching. It is possible, of course, that the judge has made an appropriate decision based on the governing rules of evidence. It i! s ! also possible, and perhaps likely, depending on the circumstances, that the judge has been affected by a host of impermissible consideration in reaching this judgment, including racism, fear of retribution, etc. It may be that other courts can't do much about this situation, but at the very least a responsible judge trying to fulfill his responsibilities should be attentive to the risk that he will be illegitmately affected by these concerns and should be as careful as he can be to avoid being affected by them. It was in this respect that I question whether the justices in the majority in Gonzales did as careful a job as they should have done.

Second, I don't disagree at all with your assertion that opposition to Roe is not necessarily based on religious beliefs. To the contrary, as a matter of pure constitutional interpretation, Roe was a difficult decision, and responsible lawyers and judges can certainly disagree with its understanding of the Constitution,without regard to their religious beliefs. We agree completely on that. (On the other hand, it's important to note that strong personal religious beliefs on an issue like abortion might affect the judgment of some judges. In my view, as I've said, it is the responsibility of judges to try not to let their own religious views affect their interpretation of the Constitution). But I agree with your central observation. Moreover, I would agree that Stenberg could quite plausibly have been decided the other way (that is, upholding the ban on partial-birth abortion) without any consideration of religion. ! Bu! t when we get to Gonzales, I have grave doubts that a disinterested lawyer, trying responsibly to apply the law as it then existed, could reasonably have reached the result of the majority (without overruling Stenberg). It was that fact about Gonzales that intrigued me. I just don't believe that a neutral and detached judge, asked to decide Gonzales, with Stenberg as a precedent, would reach the result reached by the majority. Thus, in my view, something else was affecting the justices. So my point had nothing to do with Roe, or even Stenberg. It was the peculiarity of Gonzales that stuck in my craw.

Confusing Fed Courts doctrine, same-sex marriage, and DOMA

Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement.

After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA"). The Ninth Circuit ultimately affirmed the district court decision to abstain from the challenge to state law on Pullman grounds, deferring to then-pending state constitutional challenge to California's one-man/one-woman definition of marriage (what became the California Supreme Court's 2008 decision striking-down the state definition of marriage, subsequently overridden by Proposition 8, which was upheld by the court in the face of a state constitutional challeneg). The court also held that Hammer and Smelt lacked standing to challenge the non-recognition provisions of DOMA.

In the interim between the 2008 decision and enactment of Prop 8, Smelt and Hammer were married (and California still recognizes that marriage as valid). They then brought a constitutional challenge in California state court to DOMA and to the failure of the entire United States to eliminate distinctions as to who can marry. Named defendants were the United States of America, the State of California, Does 1-1000 (I have not found the complaint, so I am not sure who those are). The United States removed the action to federal court under 28 U.S.C. § 1442 (removal by the United States). The U.S. then moved to dismiss for lack of subject matter jurisdiction--arguing that the United States could not have been sued in state court in California because of sovereign immunity and the federal court's derivative jurisdiction after removal is the same as the state court's original jurisdiction. Last week, the district court agreed.

I am thoroughly confused by a number of decisions that Smelt, Hammer, and their lawyers (I assume there are lawyers; the district court opinion does not indicate that they are acting pro se) have made. From the outside looking in, they appear desperate to go it alone and to be heroes on this issue. But their strategic choices have been bizarre and have reflected ignorance of core Fed Courts doctrine.

1) Two things must happen for anyone to have standing to challenge DOMA: a) They must be married and b) They must try to do something that triggers the (allegedly) discriminatory limits of DOMA--namely, either attempting to gain federal benefits as a married couple or to have their marriage recognized in another state. Smelt and Hammer never have tried to do either of those things, as far as I can tell (either before they were married or since they have been married), so I am not sure why their lawyers continue to believe they could be successful in challenging DOMA this way, given existing standing doctrine.

2) Why did they sue the United States? If their lawyers went to law school (and took Fed Courts or Civil Rights), they should know you cannot sue the United States for constitutional violations. You must sue responsible executive officers.

3) For that matter, why did they go to state court, knowing that any federal defendant would simply remove? And any federal constitutional claim would be a basis for removal.

4) Last week's disposition of the case turned on the unique removal doctrine of derivative jurisdiction, under which the federal court to which a case is removed lacks jurisdiction if the original court lacked jurisdiction. That doctrine has been statutorily overridden in general removal cases, but not in federal-government or federal-officer removal cases such as this one. I am not entirely sure the benefits of the government's strategy of removing-then-dismissing, rather than just dismissing; maybe because the appeal now is in the federal system. Still, this case just seems so obviously defective, no strategy can go wrong.

5) At some level, I think Smelt and Hammer still are reeling from being screwed in the first instance. As I have argued, Pullman abstention was unwarranted in the first case because the federal court deferred to state law litigation of issues under parallel state constitutional provisions (equal protection and due process). But there is no rule (and should not be any rule) requiring a plaintiff to exhaust state constitutional arguments before moving to federal constitutional arguments where parallel substantive rights are at issue. They should have been able to go forward on their original constitutional challenge to the denial of a marriage license.

6) A bit of patience, strategy, and knowledge of the doctrines could permit Smelt and Hammer to move forward in a real challenge to parts of DOMA. They need to apply for some federal benefits as a married couple (social security, whatever); have those benefits denied because; then sue the responsible federal officer who denied those benefits (not the United States), arguing the unconstitutionality of that portion of DOMA that defines marriage as between one man and one woman for federal law and federal programs, which likely was the cause of the denial of benefits.

7) It will be tougher to challenge the state-recognition provision of DOMA, just because of how the provision is written and its limited function beyond symbolism. It provides that no state is required to recognize an otherwise-valid same-sex marriage from another state; it kicks-in to justify the decision of one state to decline to recognize a another state's same-sex marriage. But states do not need DOMA to decline to recognize that out-of-state marriage; the Full Faith and Credit Clause has recognized a public-policy exception to recognition of foreign judgments. So even a federal court willing to say that, say, Utah acted unconstitutionally in failing to recognize the Smelt/Hammer California marriage could do so without having to touch DOMA, depending on the arguments the state made.

8) Ironically, Smelt and Hammer have run against a preference for big group impact litigation of constitutional issues. This partially explains the stretch to use Pullman in the first case--the court could avoid litigating this individual claim in deference to major impact litigation over the issue as a whole brought by knowledgeable cause lawyers. Thus, if Davoid Boies and Ted Olson go forward in litigating their intended federal constitutional challenge to same-sex marriage, we might see the court hearing any case by Smelt and Hammer to defer to the larger, group litigation. Despite the insistence (especially recently) on a return to the individual model of litigation and away from cause-oriented litigation, courts still seem aware of cause-centered cases and the completeness and expertise that goes into those cases. Similarly, I imagine leaders in the SSM movement have not been thrilled with Smelt's and Hammer's continued litigiousness, particularly given its incompetence.

Update, Tuesday:

My timing was good, because this has been a big week for DOMA discussions.

First, as noted in the comments, the National Law Journal had a story yesterday about a challenge to DOMA that just might work, brought by several people in Massachusetts who already have applied for, and been denied, some federal benefits (health insurance, disability, survivors' benefits) that ordinarily are available to married persons. No standing problems; no naming-the-wrong-defendant problems. And it might have legs. Mike Dorf also commented on a parallel challenge to DOMA, brought by the Massachusetts attorney general.

Second, Hillel Levin has a new paper on the conflicts-of-laws issues underlying same-sex marriage, which states are going to have to wrestle with, with or without DOMA.

Third, an interesting Fed Courts thought experiment: The plaintiffs in the Massachusetts case actually sought and were denied benefits. But at what point might they have been able to get into court? If they could have alleged a present intent to seek benefits or to claim marital status on their 2010 tax returns, would that have been enough to establish standing and to create a ripe controversy? Ordinarily, yes, a plaintiff can bring such an anticipatory, pre-enforcement challenge to an existing law, on a showing of specific intent to engage in conduct that triggers the unconstitutional law so as to satisfy standing.

But the right to do this (as discussed in Ex Parte Young) often is premised on the idea that the alternative is to wait for the law to be enforced, often through criminal prosecution and the risk of imprisonment, pretty big risks to take. So the pre-enforcement challenge allows persons to pursue the constitutional issue with less risk. But here, there is no risk of criminal punishment. The ability to trigger enforcement of DOMA rests entirely with the would-be challenger to the law--all he must do is request those benefits and have them denied. So would the courts have accepted an anticipatory challenge in this type of case?

The Libel Tourist is dead

Khalid bin Mahfouz, a Saudi citizen who brought several defamation lawsuits in Great Britain against United States writers and publishers who accused him of supporting and funding terrorism, has died at 60. (H/T: Greg Wallach of FIU College of Law).

Most recently (and famously), bin Mahfouz won a $200,000 default judgment against American journalist Rachel Ehrenfeld for her book Funding Evil: How Terrorism Is Financed — and How to Stop It. Ehrenfeld fought back by trying to get a federal injunction against U.S. enforcement of that judgment, which failed for jurisdictional reasons. Ehrenfeld then became a vocal advocate for Libel Tourism (or Libel Terrorism) laws at the state and federal levels. These bills would at a minimum make unenforceable in the United States any foreign defamation judgment against speech that is protected by the First Amendment. They would, at a maximum, establish special jurisdictional rules for domestic actions enjoining enforcement, and providing for "clawback" of the amount of any foreign judgment. I have written previously about the many problems with the more-expansive bills and was part of a panel on the subject at SEALS earlier this month.

I wonder what this news will do to either push the legislation or further dampen it as an issue.

What's a Catholic judge to do?

Prof. Alan Dershowitz accuses Justice Scalia of an "outrage against his church" for observing, earlier this week, that the Court "has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent."  "[S]urely it is among the worst sins," Prof. Dershowitz insists, "under Catholic teaching [RG:  not just "under Catholic teaching", one hopes!], to kill an innocent human being intentionally.  Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution.  How could he possibly consider that not immoral under Catholic teachings?  If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?" 

It would, obviously, be a repulsively immoral exercise of public authority to execute an actually innocent person and it is just as sure that Justice Scalia thinks so.  I'm confused, though:  Weren't we supposed to worry about Catholic justices "imposing" their morality through their decisions or incorporating "Catholic teachings" into the Court's doctrines?

Certifying Questions to the Supreme Court: Is Seale the Perfect Storm?

By now, you've surely learned from How Appealing or SCOTUSblog of the en banc Fifth Circuit's decision to certify to the Supreme Court the following question: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

The merits of this question aside, and the broader political significance of the prosecution of James Ford Seale (in which it arises) notwithstanding, it strikes me that this provides a rare opportunity to reflect upon the utility of this oddest of vehicles through which to obtain Supreme Court review.

The last time the Supreme Court accepted a certified question from a court of appeals was in 1981, in the immediate aftermath of Dames & Moore v. Regan (a case that came to the Court in one big hurry).  In a related (but distinct) case arising out of the Second Circuit (Iran National Airlines Corp. v. Marschalk Co.), the Court answered three questions, two with one word ("yes"), and with cursory citations to Dames & Moore, and a third with a short explanation and a cite. Three Justices (led by Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefiit of additional briefing and argument).

To me, at least, Powell had it exactly right. Indeed, the Court's far-more-common practice is (as it was in 1981) to send cases back down for full reconsideration (and new briefing in light of the intervening decision) on the assumption that the issues might differ, if ever so slightly (in my view, at least, this was true in Marschalk).  One might justify what the Court did in Marschalk as stemming from the same pressures that led to the quick and decisive resolution of the Iranian claims isssue that prompted Dames & Moore itself, but in the typical case, a "GVR" in light of the new decision seems right on.

Same, too, with the most recent well-known effort by a court of appeals to have the Supreme Court answer a certified question -- the en banc Second Circuit's 2005 certificate in United States v. Penaranda, asking the post-Blakely sentencing question that the Court would soon answer in Booker. There, it was only a matter of time before the question presented would arise on the merits of a properly presented cert. petition, and so the Court knew it could wait, however briefly, for the issue to ripen.

In marked contrast, here we have a pure, discrete, stand-alone legal question wholly unrelated to any other cases currently pending before the Court, and one that would, for obvious reasons, materially advance (and perhaps pretermit) the litigation in the lower courts (the original Fifth Circuit panel would have acquitted Seale). 

To be sure, it would be better if the Fifth Circuit was not evenly divided and was capable of resolving this question on the merits. But where the court of appeals can't act, where the defendant has already been convicted under the arguably time-barred claim, and where the issue may not properly come to the Court in a cert. petition before the defendant is potentially harmed by such a result, it strikes me that we might have the perfect facts for certification.

Put another way, if certification is ever going to be used again, isn't this the case for it?

Can a District Court Commit "Plain Error" By Choosing One Side of a Circuit Split?

This is the fascinating issue that divides a panel of the D.C. Circuit in a decision handed down today. The specific question is whether federal sentencing law bars a district court from choosing a longer jail sentence in order to further the defendant's opportunities for rehabilitation.  The majority (Judges Tatel and Garland) answers this question in the affirmative, reasoning that the plain language of 18 U.S.C. 3582(a) compels such a conclusion. 

But whatever the merits of their (persuasive) analysis, what makes this case interesting (at least to me) is that the court finds that the district court's error (in concluding to the contrary) was "plain," even though, as the majority points out, there is a circuit split on the question. As Judge Henderson objects in her dissent, "Whoever has the better reading [of the statute], courts have read it differently—and with conflicting results—which manifests, at least to me, that any court that has read it erroneously has not done so plainly."

Is Judge Henderson right that it is generally inappropriate, on plain error review, to find such "plain" error where the district court relied on precedent from several circuits? Or, to the contrary, is it refreshingly honest for one circuit court to admit, however implicitly, that its sister circuits are sometimes "plainly" wrong? I tend toward the latter view (after all, precedent should never be followed blindly), but think this is a fascinating issue that may well warrant further discussion.

Trying Terrorism Suspects in Article III Courts

In April, I participated in a workshop convened by the ABA Standing Committee on Law and National Security on "Trying Terrorists in Article III Courts" that brought together 33 judges, prosecutors, defense attorneys, other governmental counterterrorism officials, and academics to discuss both the pros and cons of using the Article III civilian courts to prosecute terrorism suspects currently detained without charges at Guantanamo and elsewhere.

One of the fruits of that workshop -- the workshop report -- was released today, and is available here. [The ABA release is here.] As the report notes,

While the workshop participants did not reach substantial agreement that the Article III system is capable of handling all terrorism trials, they did note generally that the courts have resolved past cases in a satisfactory manner. Some discussants remarked that many of the challenges facing the courts have been considered and managed in other contexts, implying that the courts need not create an entirely new procedural framework for most terrorism trials. Looking ahead, the discussants noted that legislation may not be appropriate to resolve all of the known issues and that the Article III courts may be better suited to resolve some of the issues without legislative intervention.

As Larry Solum would say, highly recommended!

Welcome to the World, Military Commission Reporter

Later this fall, I hope to post a series of reflections on the pending revisions to the military commissions process, especially the bills pending in both the House and Senate that would substantially revise (and in my view, improve) the Military Commissions Act of 2006 (to be fair, it could only go in one direction).

In the interim, though, I'm very pleased to note the publication of a new (unofficial) reporter of every military commission decision rendered under the MCA, put together by the folks at the National Institute for Military Justice.  For more on the reporter (including a PDF of Volume 1 in its entirety), see here. This is a fantastic resource for those who write about these decisions, none of which have been previously compiled in such a readily accessible form (indeed, many of the decisions in the Reporter were not previously available in any electronic forum).

I leave it to y'all, though, to figure out its proper Bluebook citation form. :-)

Summertime Interviews with SCOTUS Justices

Update and moved to the front. There's now a new interview between Bob Cohn and Sandra Day O'Connor. I've put the video up after the jump.

Perhaps the Justices are a bit sad that SS is getting all the attention at the hearings.  How else to explain the spate of interviews with the normally reticent Court's members... 

On the heels of Emily Bazelon's interview with Justice Ginsburg in the NYT on Sunday, now we have Bob Cohn's video interview with Justice Breyer on the Atlantic's website.

The Attorney-Client Privilege and the Collateral Order Doctrine

It wouldn't be a blog post from me without an apology for disappearing for a year and a day, but it's been a surprisingly busy summer thus far.  Part of what I've been preoccupied with is an amicus brief that a team of lawyers from Proskauer Rose and I filed today in a fascinating case on the Supreme Court's docket for the 2009 Term.

The issue in Mohawk Industries v. Carpenter is whether a district court decision finding waiver of the attorney-client privilege is immediately appealable under the so-called collateral order doctrine that the Supreme Court has read into 28 U.S.C. 1291 in a series of cases dating back to Cohen v. Beneficial Industrial Loan Corp.  Both the district court and the Eleventh Circuit said no, but the Court granted cert. anyway, ostensibly to resolve a circuit split that has arisen over the issue.

What's fascinating to me about this case is that I doubt it would even be an interesting question if it were any other evidentiary privilege.  It's well-established that the run of discovery orders are largely within the discretion of district courts, and are not subject to immediate appellate review except in extraordinary cases (e.g., where the discovery order raises serious separation of powers questions--and even then, only through writs of mandamus). This general rule makes sense, since litigation would be far more costly and take far more time if parties could run to the court of appeals over every little discovery ruling.

So is there a legal argument for why the attorney-client privilege is different? The American Bar Association thinks so, as it argues in its amicus brief in support of the Petitioner.  So too, the U.S. Chamber of Commerce. But I'm not so sure. Our brief, which is signed by a group of 25 former federal judges and/or senior experts on the federal courts, argues that the attorney-client privilege is not distinguishable from other comparable evidentiary protections, and that extending the collateral order doctrine to this case could therefore have disastrous consequences for the workload of the courts of appeals and for civil litigation more generally.

Leaving aside the specific doctrinal issues vis-a-vis the collateral order doctrine, I'm curious what folks think about the underlying issue, i.e., whether there's something fundamentally different about the attorney-client privilege, as compared to the work-product rule, the priest-penitent privilege, the spousal privilege, etc. Are lawyers special, in this regard?

Value in hearings after all?

Leave it to Jack Balkin to find some legitimate benefit in the silly showmanship of the confirmation hearings. They are, he argues, not about the nominee, but about the Senators and their efforts to articulate a popular constitutional vision and a sense of what all "reasonable" or "mainstream" judges should believe and to signal that to the judiciary as a whole.

And in truth we have heard some of that (ironically, from a Democrat, I believ Sen. Schumer)--government should win most of the time in criminal cases, government should win most of the time in immigration cases, and most race-discrimination claims should be rejected.

CTA9 rejects pharmacists' religious-conscience claims

The Los Angeles Times has the story, here, about the decision in Storman's v. Selecky:

The right to freely exercise one's religion "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," the 9th Circuit panel wrote.

"Any refusal to dispense -- regardless of whether it is motivated by religion, morals, conscience, ethics, discriminatory prejudices, or personal distaste for a patient -- violates the rules," the panel said.

At First Things, Wesley Smith warns that (among other things) the decision "also means that all pharmacists in the state must dispense death to terminally ill patients in Washington who receive lethal prescriptions."  Paul Moses, at Commonweal, weighs in here,  (Rob Vischer, readers might recall, touched on this general issue during his recent guest-blogging stint;  here is an earlier post of mine on the topic.)

Any reactions to or thoughts about the case?

UPDATE:  In a fit of inexcusable blog-myopia, I missed Howard's earlier -- as in, from yesterday -- post on this case.

Court of appeals reverses injunction on pharmacist regs

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.

Yankee Stadium "God Bless America" lawsuit settles

The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here.

According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees. The Yankees will pay nothing, although they promise in the settlement agreement that the policy at the new Stadium is and will remain that people are free to get up and move around during the song.

Obviously, we should not read anything about the merits into the decision to settle, but consider two things. First, $ 10,001 is a significant amount, given the lack of apparent actual damages. Second, we might infer that both the City and the Yankees took the view that the state action point was not so obvious that it could be resolved on a 12(b)(6), meaning Discovery would be necessary and perhaps prompting defendants to settle.

Litigating the War on Terror # 1: Telecom Immunity

Two recent cases of note involving efforts to litigate rights claims against the government for conduct in the WOT. I will discuss them in separate posts this week.

Today, we look at In re National Security Agency Telecommunications Records Litigation, MDL No. 06-1791. Judge Walker of the Northern District of California upheld the constitutionality of § 802, the telecommunications immunity provision of the FISA Amendments Act of 2008. Section 802 requires the dismissal of any lawsuits against telecom companies for their assistance in the Bush Administration's warrantless surveillance of U.S. citizens' phone calls, upon certification by the Attorney General that the telecom company had acted in support of an intelligence program and on written presidential request and assurances of the lawfulness of the warrantless surveillance, so long as the certification was supported by substantial evidence. The court dismissed (although without prejudice) all constitutional and statutory claims against the telecom companies. I previously defended the constitutionality of this provision.

The court rejected a number of due process and separation of powers arguments. Of particular interest to me was an argument based on the venerable-but-never-fully-understood United States v. Klein. The court adopted the (appropriate) view that Klein prohibits Congress from dictating legal and factual findings in a particular case or requiring resolution of particular cases in certain ways, although Congress may amend underlying substantive law and have that law applied even as to pending litigation. Judge Walker concluded, correctly, that this is what happened here. Congress amended substantive law by creating a new immunity (not an affirmative defense*) that protected the telecoms from liability for constitutional violations for acting on presidential request for a wiretap, but left it to the court to decide whether the certification was, in fact, supported by substantial evidence.

I was lead author on a scholars' amicus brief that argued that the immunity provision did not violate Klein and Judge Walker actually cited our brief at length and adopted part of our core argument. Klein (including § 802's validity under Klein) also is the subject of my current major writing project, coming soon to an SSRN mailbox and the desk of all you Law Review editors.

The closest constitutional issue was over non-delegation. Section 802 authorizes the AG to file the certificate, but it does not explicitly compel her to do so or establish any standard (discernable or otherwise) for when she should file a certification. The court ultimately rejected the non-delegation challenge for three reasons: 1) this was not an open-ended delegation of rulemaking authority to an administrative agency, but rather a narrow, focused command to an individual to take a specific, narrow action; 2) there is greater tolerance for more-open-ended delegations in national security, where there is greater legislative/executive joint action; and 3) the legislative history of § 802 gave enough content and context to guide the AG's discretion as to whether and when to certify. I do not know enough about non-delegation to opine as to how persuasive these arguments are; thoughts from readers who know this area?

The other interesting thing was that the court dismissed without prejudice. Plaintiffs represented to the court that newly disclosed documents suggested that the telecoms had engaged in warrantless wiretapping after January 7, 2007, the end point of the § 802 immunity (that is the date that Congress initially retroactively validated the wiretapping that the President had unilaterally authorized following September 11). So it may be that the plaintiffs can plead around the § 802 immunity.

* Judge Walker pointedly rejected our description of § 802 as an "affirmative defense," insisting that it is an "immunity." I am not sure there is a difference. Most immunities are affirmative defenses (although not all affirmative defenses constitute immunities), in the sense of being a legal rule outside the plaintiff's claim that bars liability on certain new facts, which must be pled and proven by the defendant (or, here, the defendant and the government). I have been arguing that telecom immunity is analogous to official immunities under § 1983 (prosecutorial, judicial, qualified), all of which are immunities that also are recognized and treated as affirmative defenses.

Law Schools and the Freedom of the Church

As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money. The blog Ave Watch has closely monitored the litigation and the controversy, as well as being a general source of criticism for the school and founder Tom Monaghan. Rick and the rest of the folks at Mirror of Justice issued a joint statement two years ago, warning of the effects of the controversy there on Catholic legal education generally.

Last month, the school moved to dismiss the claims as to all defendants for lack of subject matter jurisdiction under the Church Autonomy Doctrine (or Ecclesiastical Abstention Doctrine) and its employment off-shoot, the ministerial exemption. There was oral argument a couple of weeks ago and a decision is expected, perhaps this week.

Some thoughts after the jump.

1) I again wish the parties and the court would not speak about this as a jurisdictional issue. Michigan courts are courts of general jurisdiction, meaning they can hear all claims arising under secular law, regardless of source. The plaintiffs have brought straight-forward tort and contract claims under Michigan law, plainly within the court's adjudicative authority. The Church Autonomy Doctrine prohibits secular law from controlling religious institutions and their management of ecclesiastical matters, such as selection and supervision of ministerial employees. The First Amendment limits the scope and reach of secular law. If applicable, the Doctrine defeats the merits of the plaintiffs' claims--they have no right under secular law to be free from certain actions at the hands of a religious institution and they cannot sue religious institutions under secular law for firing them. So, to the extent the school is right about being protected by Church Autonomy, particularly in the realm of employment cases, I wish we can start talking about this as a merits issue, not a jurisdictional one. Because this case arises in state court, it seems like a good vehicle for recognizing the truly substantive nature of the doctrine.

Actually, there is fairly limited Michigan law applying the ministerial exemption to this sort of wrongful termination, so the defendants rely on a lot of federal cases involving the ministerial exemption from Title VII, which is the subject of large circuit split on the substantive merits/jurisdiction question. Ironically, one of the cases that the defendants rely on is Petruska v. Gannon University, is a leading case for the merits view of the exemption.

2) There is case law applying the doctrine to bar a Title VII claim by a nun who was denied tenure in the Canon Law Department at Catholic University. But that case involved a Church-operated school, evaluation of explicitly religious teaching and scholar, and a plaintiff who herself was a member of an Order and thus subject to a high degree of Church control.

But this would be a very new and expansive application of Church Autonomy for two reasons. First, Ave Marie is not owned, operated, or controlled by the Catholic Church; it identifies itself as a "Catholic law school." In order to receive this designation, the school needed approval from the Diocsese of Lansing and Ave Maria insists this designation requires it to abide by certain ecclesiastical doctrines. But the Church exercises no control or authority over the school, including any role in evaluating whether the school or individual professors were comporting themselves with that purportedly pervasive Catholic vision. School officials make those determinations. Second, the professors did not teach religious or canonical classes; the school was founded with the goal of bringing the Catholic intellectual tradition to bear on every aspect of instruction, although it is not clear from the briefing papers how that was carried out or how that affected the nature of classroom instruction or the evaluation of professors. Interestingly, canon law experts believe this would be an inappropriate application of the doctrine.

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

Constitutional Borrowing

 

Many thanks to Dan and the rest of the Prawfs community for inviting me to join the conversation once more.  Lately, I’ve been thinking about constitutional borrowing, which is the practice of lifting legal frameworks, standards, mechanisms, and the like from one area of constitutional law for use in another, seemingly irrelevant constitutional domain.  Robert Tsai and I have written a piece on the topic, which is forthcoming in the Michigan Law Review and available on SSRN.  Here is the abstract:

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking.  Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion.  Yet the practice itself remains surprisingly underanalyzed.  This Article seeks to bring greater theoretical attention to the matter.  It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens not only during the drafting of a constitution, but also in its implementation.  Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other.  We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Once sensitized to the phenomenon, you start seeing it everywhere. 

In Heller, to take just one recent example, Justice Breyer chided the Court for not explicitly adopting an interest balancing standard for the Second Amendment similar to the ones used in election-law, speech, and due process cases.  Justice Scalia, writing for the majority, responded that the only proper sources for appropriation were precedents concerning other enumerated rights, such as the First Amendment’s speech guarantee, which allows only limited, categorical exceptions.  Their debate focused on a particular migration while assuming the legitimacy of the practice itself, perhaps too quickly.

While of course borrowing happens all across the law—a commonality that we hope will attract people who work outside constitutional law, including experts on statutory interpretation, common law subjects, and international law—the considerations that arise when constitutional lawyers and judges engage in the practice are particular to that area in several important respects.  We aim to highlight the specificity of constitutional borrowing, for example by drawing out the implications of legal migration for several prominent constitutional theories.  We are working actively on revisions and would welcome comments.

Ricci Overturned by Scotus 5-4

H/t to Scotusblog (via Adler), which is live-blogging. The opinion is here. Reactions?

New Symposium on Originalism in NW U. L. Rev.

Via Tarlton, I just saw word of a great looking symposium on originalism in the Nw U L. Review.

I've posted the Contents after the jump. Congrats to EIC Dave Baltmanis and his team on putting this together.

NORTHWESTERN UNIVERSITY LAW REVIEW

Volume 103       Number 2       Spring 2009

 

SYMPOSIUM

ORIGINAL IDEAS ON ORIGINALISM

FOREWARD: ORIGINAL IDEAS ON ORIGINALISM

Brian A. Lichter & David P. Baltmanis

491

 

CONSTITUTIONAL AMBIGUITIES AND ORIGINALISM: LESSONS FROM THE SPENDING POWER

Lynn A. Baker

495

 

FRAMEWORK ORIGINALISM AND THE LIVING CONSTITUTION

Jack M. Balkin

549

 

THE MISCONCEIVED ASSUMPTION ABOUT CONSTITUTIONAL ASSUMPTIONS

Randy E. Barnett

615

 

TWO CHEERS FOR PROFESSOR BALKIN'S ORIGINALISM

Steven G. Calabresi & Livia Fine

663

 

ORIGINAL INTENTION AND PUBLIC MEANING IN CONSTITUTIONAL INTERPRETATION

Richard S. Kay

703

 

PHONY ORIGINALISM AND THE ESTABLISHMENT CLAUSE

Andrew Koppelman

727

 

ORIGINAL METHODS ORIGINALISM: A NEW THEORY OF INTERPRETATION AND THE CASE AGAINST CONSTRUCTION

John O. McGinnis & Michael B. Rappaport

751

 

RECONCILING ORIGINALISM AND PRECEDENT

John O. McGinnis & Michael B. Rappaport

803

 

DOES THE CONSTITUTION PRESCRIBE RULES FOR ITS OWN INTERPRETATION?

Michael Stokes Paulsen

857

 

DISTRICT THE CONSTITUTION PRESCRIBE RULES FOR ITS OWN INTERPRETATION?

Lawrence B. Solum

923

 

AGAINST TEXTUALISM

William Michael Treanor

983

DA's Office v. Osborne: Bad Facts Make Tough Cases

I've only had a chance to read the SCt's opinion in DA's Office v. Osborne rather quickly, but I thought I'd share a tentative reaction or two and invite some conversation on the topic. (You can get the opinion here, and Liptak's got a summary of the issues here.)  In this case, the Court's conservative majority declined the invitation to constitutionalize under the Due Process Clause a right to gain access to DNA evidence via a Section 1983 claim. 

I'm not a fed cts scholar so I'll leave aside the issue of whether Osborne ought to have pursued his claim through habeas instead of 1983. (My sense is that Alito's concurring opinion has the better argument as to why it should be done through habeas.)  But getting to the merits, my view is that the unsavory facts of Osborne's case will be used to cabin the scope of the holding. On better facts, and perhaps in a more appealing procedural posture, at least Kennedy will be likely to come around and recognize the rights of the actually innocent in post-conviction scenarios.

Osborne's plausible legal request was hampered, in other words, by the facts that a) he had already been convicted for a subsequent home invasion; b) he had admitted to his participation in the crime during his efforts to seek parole (which put defendants in a tough situation by asking them to accept responsibility); and c) most importantly, his lawyer declined to get more accurate forms of DNA testing during the trial b/c she wanted to take advantage of the imprecision of the DNA testing that was ordered to create reasonable doubt. In other words, she strategically declined more advanced testing (despite her client Osborne's apparent importunations that more sophisticated) because she thought enhanced testing would establish her client's guilt rather than preserve the possibility of a mistaken identity theory that she argued to the jury.

These bad facts and the potential biases created by them made the case a bad one in terms of establishing doctrine, but my sense is that lower courts with more favorable factual situations will at least be able to cabin the thrust of the Osborne case by pointing to the dicta in the majority opinion by Roberts that emphasizes that actual innocence claims are still possible.  This is a relief, for reasons I explain below the fold.

   In my forthcoming piece on Panetti and the future of the Eighth Amendment, I argue that the Court's reasoning in Panetti v. Quarterman commits itself implicitly to both communicative retributivism and negative retributivism.  The negative retributivism commitment in punishment theory basically says the state may not punish a defendant if she is not guilty, and if she is guilty then she may only be punished to the extent her guilt permits the punishment. In the context of doctrine, obviously concerns of finality are allowed to play a role in crafting decision rules for judges and other state actors.  But those concerns cannot preclude reasonable attempts by convicted persons to have newly discovered evidence that is highly probative and was earlier unavailable be considered by the state--or at least, that's what I argue. The problem with Osborne's case is that his facts look uncomfortably close to one where a defendant is trying to, as Justice Alito noted, game the system. (In Panetti, Kennedy was joined by the four moderate/liberals; in Osborne, Kennedy voted with the traditionally more conservative side of the court.) 

My hope then is that litigants better situated than Osborne will be able to access DNA evidence by bringing a Panetti-inspired Eighth Amendment claim--but I don't really have a dog in the hunt regarding whether it's procedurally managed through habeas or 1983. It seems as if the habeas strategy will be more likely to garner votes. As to the substance, whether it's done through the Eighth Amendment or due process, my sense is that the Osborne case will definitely not be the Court's final word on access to DNA testing and that lower courts will be able to work around Osborne based on the bad facts here.  

All that said, I'm curious to hear what Steve and Howard have to say on the procedural stuff, and what your reactions to the case were also.

Grouchy Justice(s): NRF's defense of judicial bad behavior...

For those of you who missed it, Noah Feldman's got an unusually interesting take in this morning's NYT on the Sotomayor nomination and why judicial temperament is not a pre-req for being a great Justice. He examines why the "no asshole workplace" is not necessarily a desideratum if we're looking for great constitutional developments, whatever those are. Specifically, we get a flavor of how the friction among Frankfurter, Black, Douglas and Jackson "worked."  

Reactions?  Should Sotomayor be prepared to have her views called "irrational" and not "to be taken seriously" -- as O'Connor was when subjected to Scalia's sharp barbs and male bullying...? Or is it too much to ask everyone on the SCOTUS to also be on good behavior? 

Jurisdiction in the Court

While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits.

The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue. In other words, whether relief should be granted is distinct from whether the court has the authority to hear the case. At several points, in explaining why the NMCMA had jurisdiction, Justice Kennedy dismissed government arguments by insisting they went not to jurisdiction, but to the substantive question of whether the petitioner was entitled to a remedy. The Court did not discuss the distinctions or announce principles for separating them, but it was good to see it acknowledging they are different concerns and treating them as such.

The second was Republic of Iraq v. Beaty, which dealt with questions of the waiver of Iraq's sovereign immunity from suit under U.S. law in federal court. The Court treated immunity as a jurisdictional question and held that the withdrawal (after the fall of Saddam) of the waiver (for being a state-sponsor of terrorism) of Iraq's immunity deprived the district court of jurisdiction over claims by victims of torture under Saddam's regime. This is unfortunate, because I continue to believe that sovereign immunity is better understood as a substantive limitation than a jurisdictional one. The point of sovereign immunity is that a foreign nation is not subject to any duties under U.S. law (at least not through a private lawsuit) and injured individuals have no rights under U.S. law as against foreign sovereigns; Iraq cannot be liable under U.S. law for its conduct, regardless of where the claims are brought. Those are purely questions of substantive merits. I will continue to push this as a normative point in several upcoming articles (particularly as to religious organizations), but the argument just became harder to make descriptively.

Chaim Saiman (guest post) on Caperton

In, Caperton v. A.T. Massey Coal, (released Monday, June 8) the Supreme Court ruled 5-4 that a West Virginia judge violated the Due Process Clause by not recusing himself from a case in which one of the parties spent $3 million towards the judge’s election campaign. 

Justice Scalia dissented, and concluded his remarks with the following: 

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed.1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed-which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious 

Given the context of the case, I recommend to Justice Scalia the following Talmudic passage (Sanhedrin 7b-8a), in which the Rabbis express their attitude towards substantive issue at hand: 

Someone who had hosted Rav once appeared before Rav as a litigant. The litigant said to Rav: Where you not a guest in my house? Rav answered: Yes. The litigant said: I have a case that requires adjudication Rav answered: I am disqualified from serving as your judge (since I benefited from your hospitality) Rav then turned to Rav Kahana and said “Go and adjudicate this claim” Rav Kahana saw that the litigant was acting confidently Such that Rav Kahana said to the litigant “If you will obey my judgment, then obey it,” But if not I will prevent Rav from aiding you Or to take another example from the Ketubot 105 (which records many such stories), where the Talmud relates that bribes can come in the form of cash as well “in words.” In inquiring what constitutes a “bribe in words”, the Talmud reports Like the case of when [the Talmudic sage] Samuel was crossing a bridge A certain man approached him and gave Samuel his hand for support while crossing Samuel asked him: “What is your business?” He replied: “I have a suit in your court.” Samuel said: “I am disqualified from serving as the judge in your case” 

Now I suppose that one might argue that this is precisely Scalia’s point. He means to draw a contrast between the divinely-inspired Jewish law (which presumably provides solutions to all legal problems), and the merely-mortal Due Process Clause, which does not. This claim gets into several lines of argument too detailed for right now-(but lets recall that the Talmud also distinguishes between rules that are ceilings vs. floors). In any event, if Scalia is going to cite Talmudic law in a case concerning judicial impartiality, he should at the very least inform us that the result he favors lies in sharp contrast to Talmudic conceptions of judicial ethics.

The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown

For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here).  I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...

But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.

By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts.  But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).

For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits.  Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.

More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).

  Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court’s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State’s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.

To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.

I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles.  Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.

Deborah Hellman on Prop 8 decision, Peter Westen, & Equality

Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below:

"Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right. Moreover, equality cannot require that the state treat each of us the same, as the state clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, “treat like cases alike,” is meaningless, he argued, because the important question will always be: which cases are relevantly like which others? And the California Supreme Court unfortunately agrees.

"Yesterday, that court decided that Proposition 8 – which “added” text to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” – was an amendment to that state’s constitution rather than a revision of it. Because an amendment requires only the process used to pass Prop 8 (a referendum), while a revision would require a constitutional convention, this decision upholds Proposition 8. Prop 8 itself overturned the prior decision of the state’s highest court holding that the California Constitution forbids limiting marriage to opposite-sex couples. The court reached the conclusion that Prop 8 is only an amendment to the constitution by finding that the change it makes is not to constitutional fundamentals. It did this by reading equality as an empty idea.
The court reasoned that gay men and lesbians can afford themselves of the civil union opportunities California provides. In the court’s view, while restricting the designation of “marriage” to gay couples is not irrelevant, it does not constitute an abandonment of the state’s commitment to equality because this is a fairly limited restriction. Prop 8 is a constitutional amendment because it makes a minor change, merely limiting the designation of “marriage” to some people while still affording others the actual rights they deserve – to be able to form families, have meaningful relationships, etc.

"This decision shows Westen’s mistake, as well as what is at stake in how we conceive of the norm of equality. Equality is not an empty idea. It requires that the state treat each of us as equals. Westen is right that equality does not require that the state treat us the same in all circumstances. Nor does the norm of equality tell us what particular rights (other than equality) we each have. If the state wanted to stop granting marriage licenses to anyone, essentially leaving the designation “marriage” to religious or other private parties to confer, and simply grant civil unions to both straight and gay couples, the right to equality would not be offended. In that sense, no one has a right to “marriage.” But what equality does demand is that the state must treat us as people of equal worth. This command forbids the state from drawing distinctions among people in a way that is demeaning. Justice Moreno of the California Supreme Court explains in his opinion, concurring in part and dissenting in part, that “[d]enying same-sex couples the right to call their relationships marriages treats them as ‘second-class citizens.’” It is this that equality forbids.

"One cannot help but think of Justice Harlan’s famous dissent in Plessy, “as all will admit, … the real meaning of...” the law is “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Today we might say, “as all will admit”, the real meaning of Prop 8 is that the relationship between couples of the same sex is not equally valuable as the relationship between opposite sex couples and therefore does not deserve the name of 'marriage.' While this is not exactly the same as branding gays as inferior, Prop 8 surely brands their relationships as inferior, which is awfully close."

Affirmative Action in Michigan & the Hunter-Seattle Doctrine

What should a law professor think of judge’s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question. The plaintiffs are challenging the constitutionality of a state constitutional amendment (“Proposition 2”) banning the University of Michigan’s affirmative action programs. The district court has ruled against the plaintiffs, and the briefs have been filed in the Sixth Circuit. But one suspects that the doctrinal niceties of the case are dwarfed by the following obvious political reality: No court will ever declare that a state’s voters are constitutionally prohibited from jettisoning affirmative action if they so desire, because judges regard the voters’ power to control such controversial policies as essential to those policies' democratic legitimacy.

At issue in the case is whether Michigan’s affirmative action ban falls afoul of the slippery equal protection doctrine of Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) invalidates this state constitutional ban on affirmative action (“Proposition 2”). These cases have come to stand for the principle that state law may not “allocate governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Washington, 458 U.S. at 469. Invoking this principle, Hunter struck down a city charter amendment barring the city council of Akron from enacting Fair Housing ordinances prohibiting discrimination on the basis of race. Likewise, Washington struck down a state-wide ballot initiative prohibiting school districts from adopting race-based student assignments not required by the Fourteenth Amendment.

As a purely doctrinal matter, it is difficult to see how this doctrine should not also result in the invalidation of a state constitutional ban on affirmative action. In upholding Prop. 2, Judge David Lawson argued that, unlike Michigan’s affirmative action programs, “racial integration programs [like Seattle’s busing program] do not presumptively offend the Equal Protection Clause” and that “[race-based] [d]esegregation [in K-12 education] is constitutionally required in certain instances” whereas “the Supreme Court has never held that affirmative action is required, and Grutter made it clear that it is barely tolerated” (Pages 5-6 of Judge Lawson’s opinion denying plaintiffs’ motion to alter or amend judgment). None of these arguments are very persuasive in the wake of Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), in which the Court held that race-based student assignments in K-12 education are now just as suspect as any other race-based classifications. If Washington’s ban on (presumptively unconstitutional but sometimes permissible) race-based busing is unconstitutional because that ban “mak[es] it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” then it is hard to see why Michigan’s ban on (presumptively unconstitutional but sometimes permissible) affirmative action is not equally an infringement on these minorities’ power to achieve (admittedly suspect) legislation.

But the doctrinal details are obviously beside the point: It is hard to avoid the conclusion that Judge Lawson simply could not swallow the idea that Michigan’s voters cannot get rid of affirmative action if they so desire. Was this lawless behavior, or was it a judge’s legitimate (albeit clumsy) effort to reconcile norms of federalism and popular sovereignty with a doctrine that seemed to cut too close to those constitutional values?

After the jump, I’ll offer a couple of reasons why federalism and popular sovereignty might not be offended by invalidating initiatives like Prop 2 on Hunter-Seattle grounds. But my larger question is whether readers believe that it is appropriate for an inferior court to take such big structural considerations into account to “construe” and limit a precedent that otherwise seems plainly applicable.

On the specific question of whether the Hunter-Seattle doctrine, rightly understood, interferes inappropriately with federalism, I (a certified federalism nut) think that the question is more uncertain than many allow. The doctrine, after all, does not prevent Michigan from prohibiting affirmative action programs. If the state’s voters want to create a comprehensive code for public universities listing the factors that can play a role in university admissions but leaving out race, then they are free to do so so far as Hunter-Seattle is concerned. The Hunter-Seattle problem arises only because the state has set up a system of administrative discretion in which (for instance) the University of Michigan’s regents have broad discretion to decide whether or not to consider any number of educationally tangential factors – alumni status, geographic origin, poverty, professional experience, extra-curriculars like jazz band or debate club, etc – but must ignore any plea by their constituents to consider race. This is the sense in which Prop 2 is (in Justice Harlan’s words from his Hunter concurrence) akin to “dilut[ing] [a] person’s vote or giv[ing] [a] group a smaller representation than another of comparable size.” If Michigan wants to amend their constitution to get rid of the Board of regents and turn their functions over to the state legislature, they are free to do so under Hunter/Seattle. Likewise, Michigan’s voters could simply enact a “university admissions code” that left out race altogether from the list of permissible factors without offending Hunter/Seattle. But, having given their regents enormous discretion over university policy, Michigan's voters cannot then gerrymander an exception to this broad jurisdiction just for issues especially beneficial to a racial segment of the population.

Is such a doctrine consistent with federalism? Consider the following defense of the doctrine in terms of federalism. Federal regimes are valuable because they protect institutions (states) that are politically accessible to a lot of constituencies. Each state is not a monolithic entity but rather a collection of counties, municipalities, special districts, public universities, and literally hundreds of elected executives (e.g., insurance commissioners, D.A.s, sheriffs, drain commissioners, etc), all unified by a constitutional framework that allows them to make coherent policy without treading too injuriously on each others’ toes. These polyglot entities are superior (in my mind) to the federal government precisely because they radically reduce the costs of political participation by shrinking the size and multiplying the number of electoral districts: The average member of the U.S. Representatives raised roughly $2 million in 2005-2006, while expenditures in state elections tend to be much smaller, ranging from $10,000 per representative in states like Idaho that have electoral districts with very small electoral districts to $500,000 in California’s much larger state senate districts.

But the democratic legitimacy of this highly permeable system is undermined by “carve-outs” that eliminate the ability of certain constituencies – especially racial ones – to take advantage of the access that the system affords. Hunter-Seattle can be regarded as a safeguard against this sort of carve-out by requiring that states' voters or legislatures define the powers of the state's institutions without reference to the interests of particular groups. For instance, if the state wants to centralize municipal benefits policy in, say, a single administrative board, then it can do so under Hunter-Seattle. But a state’s banning cities only from providing same-sex employment benefits comes close to offending the principle of equal political access (assuming that the Hunter-Seattle doctrine extends beyond the racial context).

In this sense, Hunter-Seattle is consistent with that other Hunter doctrine -- Hunter v. City of Pittsburgh, 207 US 161 (1907), which declared that cities lack constitutionally protected property or contract rights against the states that create them. Hunter-Seattle preserves this state discretion to centralize vast swathes of policy-making (university admissions, public employee benefits, etc) just so long as the state paints with a reasonably impartial brush.

I do not pretend that these formulations resolve the predictable questions of what it means for jurisdiction to be defined with "reasonable" impartiality. But I do not think that the threat to federalism or popular sovereignty posed by Hunter-Seattle is plain enough to justify a lower federal court's evasion of the doctrine's plain terms.

Six (!) Catholics on the Court?

So, it sounds like President Obama will nominate Judge Sonia Sotomayor to replace Justice Souter.  Could it be that we will soon have a Supreme Court that is two-thirds Catholic (and 1/9th "White Anglo-Saxon Protestant")?  Poor Chris Hitchens!  And now for some bold punditry:  I am going to go out on a limb an predict that we will not seen op-eds like this one if Justice Sotomayor's votes are consonant with the social-justice teachings of the Catholic Church.

More on religious freedom, exemptions, and SSM

Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot").  Both items relate to the efforts of several law professors (including Michael Perry, Doug Laycock, and Andy -- here is their letter to New Hampshire's governor -- and Robin Wilson, Carl Esbeck, Tom Berg, and me -- here is our letter).

Andy's thoughts regarding the question, "what is bigotry, anyway, and why is it a bad thing?" are interesting:  "Bigotry is wrong for two reasons", he writes, "First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these."  In his view, the objection to religious-liberty exemptions to same-sex marriage laws cannot really be that they will harm gay people, "because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities.  It is rather that we shouldn’t accommodate bigotry."  And, in his view, there is no need to "beat up on" "antigay bigots, even the morally reprehensible ones," if "they can be rendered harmless."

Like Andy, I do not believe that all of those who support (as I do) and who would invoke religious-liberty exemptions from SSM laws are "bigots."  (I suspect Andy would be generous in admitting people to his category of those "on that side of the political divide who . . . are honestly doing their best to pursue the right as it is given to them to see the right.")  I do believe, though, that anyone who would claim the label "liberal" should support at least some such exemptions -- not simply because it is not worth the candle to beat up on "harmless" bigots -- but because the refusal (and even, frankly, the reluctance) to concede that there are some contexts or spheres (e.g., the internal polity and practices of a religious community) into which liberal norms need not extend and upon which they should not be imposed is profoundly illiberal.

Iqbal III: The Death of Supervisory Liability

Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo.

More problematic is that the Court seemingly eliminates supervisory liability (the "term 'supervisory liability' is a misnomer"). That is, at least in Bivens claims and/or claims involving constitutional rights that require intent. Worse, the Court did this despite the issue not being briefed or argued and despite the defendants' stipulation as to the appropriate standard for supervisory liability.

It is unquestioned that there is no respondeat superior liability as to entities or supervisory officials under § 1983 or Bivens (expressly defined in Iqbal as its federal analog); a supervisory officer only can be liable for his own misconduct. But all of the courts of appeals prior to today had recognized (although with varying language and rigidity) that supervisory liability could attach where there was underlying unconstitutional conduct on the ground (whatever the state of mind required for that underlying conduct) and a supervisory official knew about the misconduct and acquiesced in it or condoned it or failed, with deliberate indifference, to take steps to correct or prevent the misconduct.

And this is what Iqbal attempted to plead: That he was detained and mistreated in violation of his First, Fifth, and Eighth Amendment rights by federal officers on the ground and that Ashcroft and Mueller either a) created or implemented the policies pursuant to which they were mistreated or b) knew about the mistreatment. And Mueller and Ashcroft both conceded that they could be liable if they actually knew about underlying constitutional violations and took no steps to halt or correct the misconduct.

Instead, noting that the rights in play (Free Exercise and equal protection) required discriminatory purpose--that the official acted in some way "because of" (rather than "in spite of") the particular trait--the majority insisted that a supervisory official also must have acted with such a discriminatory purpose. The "respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." So mere knowledge of constitutional violations on the ground and failure to respond to them is not enough; the officer must have failed to respond precisely because the victim was an Arab-Muslim.

Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent. The complaint included allegations (which the plaintiff obviously believed would be legally on point) of knowledge/acquiescence in unconstitutional conduct on the ground, but the Court rejected these allegations as insufficient bare conclusory allegations. The Court thus could have rejected the supervisory-liability claims as insufficiently pled under the expected knowledge/acquiescence standard, without having to change the substantive standard as it did. Put differently, the Court could simply have rejected the supervisory claims as factually insufficient, rather than changing the legal standard to render them legally insufficient. Not to mention that the issue was not raised or briefed.

It will be interesting to see how this issue plays out in the lower courts. The Court spent a lot of time talking about Bivens, so perhaps lower courts will say that the rules for supervisory liability will be different for § 1983 than for Bivens. Alternatively, perhaps (although I doubt there is any principled basis for doing this) lower courts will say that the rules are different for high-ranking federal officials (such as the AG or head of the FBI) than for low- and mid-level supervisory officers who are more aware of what goes on on the ground. Another possibility is that this discussion of supervisory liability applies where the underlying violation is of an intent-based right (such as the First and Fifth Amendments), but knowledge might be sufficient where the underlying violation is of a different right lacking an intent requirement (such as the Fourth or Eighth Amendments). But, of course, the straight-forward reading is there is no longer any such thing as supervisory liability in constitutional cases.

Citizenship and the U.S. Territories

Thanks to Dan and Prawfsblawg for letting me stay a little while longer. I have enjoyed blogging about critical race theory, immigration and other law-related matters (here and here).  I look forward to blogging some more about race and immigration law as well as my research and writing projects on property rights and citizenship.    

To begin, I am currently writing a law review article that focuses on the rights of persons who live in the former and current U.S. territories, particularly regarding the nature of their citizenship. I have a draft of a paper, "Examining Birthright Citizenship in the U.S. Territories," (I will post on SSRN at some point) which explores claims by individuals that they were U.S. citizens at birth because they were born in the Philippines when the archipelago was a U.S. territory (1899-1946).  Specifically, they argue that they acquired citizenship by virtue of the Citizenship Clause of the 14th Amendment.  I will be presenting this paper tomorrow at a symposium, "Contested Citizenship," at the University of Oregon School of Law.  The syposium is sponsored by the Wayne Morse Center for Law & Politics and organized by Professor Michelle McKinley.  

Courts have consistently rejected these birthright citizenship claims from the Philippines, with the most recent one, Lucidine v. Winter, decided in March.  The Citizenship Clause provides that a citizen of the U.S. is one who is born "in the United States" and "subject to the jurisdiction" of the U.S.  Although courts have recognized that the Philippine Islands were under U.S. sovereignty during the territorial period, they have held that the Philippine Islands were not part of the U.S. Utilizing a century-old line of cases called the Insular Cases, courts have held that the territorial scope of the Citizenship Clause is limited to the fifty-states. My paper critiques the continued reliance on the Insular Cases and argues for reconsideration of the interpretation of the Citizenship Clause as applied in the territories in light of Boumediene's non-formalistic approach to understanding the application of rights outside of our borders.

Cases concerning the former and current U.S. territories are generally ignored in the textbooks. We should pay attention to them, however, because they provide a more nuanced view of constitutional rights.  As cases involving the rights of persons detained in Guantamo and litigation concerning whether Senator John McCain is a natural-born citizen have demonstrated, questions about what rights are available in the U.S. territories continue to shape constitutional jurisprudence. 

Law Professors: Lou Dobbs is on Our Side

A couple of weeks ago, Lou Dobbs discussed what he called "an apparent threat to America's sovereignty," namely certain remarks made by U.S. Supreme Court Justice Ruth Bader Ginsburg. I will warn you, her words are shocking. But I feel you need to see them. This is the actual transcript of what she said at a symposium at the Mortiz College of Law at Ohio State University.

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor.

Don't you see? Lou Dobbs is not just fighting against foreign influence, he is fighting for law-review-article influence. 

This is, indeed, a truly grave "threat to America's sovereignty." We need America's sovereignty to continue to be held, as it always has been, by America's law professors.

I hope all of you professors will join me in roundly condemning Justice Ginsburg and supporting Lou Dobbs – as he has supported us. And if Justice Ginsburg continues her assault on America's sovereignty, let us band together and fight back. We have the power write a bunch of really confusing scholarship about the Third and Ninth Amendments, and we should not be afraid to use it!