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What about the First Amendment?

Tracie Egan Morrissey was extremely upset (rightfully so, I guess) about a rash of racist and hate-filled tweets that followed Barack Obama's re-election last Tuesday, some of them from high school students. In a follow-up post on Friday, Morrissey displayed a number of the tweets from high-schoolers (identified by name and school), reported on her efforts to urge administrators at their high schools to punish the students for violating the student code of conduct or some such, and reported on the responses (or non-responses) of school officials. Katy Waldman at Slate wrote a take-down of  these efforts, pointing out that teenagers think, say, and do stupid things all the time; while calling attention to the tweets is fair game, trying to have them punished for them seemed "petty and vindictive."

Worse, Morrissey's stunt ignores the First Amendment. Most of the tweeters she identifies attend public school, so I am not sure on what basis a school should be able to punish these students or why she believes urging them to do so is a good idea. The scope of student speech is ever-narrowing, particularly on-line speech, which neither courts nor school administrators seem to understand. But none of the tweets that Morrissey describes should fall within the ambit of school regulation. There is no indication they were sent during school hours or that they were directed to the school; the students were talking to the public at large, engaging (however stupidly) in the broader public dialogue. Schools should be encouraging that engagement. And while we hope schools educate their students about the need for civil discourse, it is not and should not be their role to police students outside the school walls. Similarly, school "codes of conduct" are not intended to control student conduct 24/7. I would be quite troubled if any of the schools tried to do so or if a court allowed them to.

This also makes Morrissey's piece troublingly demogogic. She is attempting to shame school officials to drastically expand their authority in a way that should raise First Amendment alarms, to shame school administrators for not violating the First Amendment rights of their students, and to set the students up to have their rights violated by over-officious school officials.

Finally, a word to the student authors (as well as everyone else saying stupid things on Twitter or anyplace else on the interwebs): Your account was not hacked, so just stop. I will defend to the death your right to air your insipid thoughts in a visible public forum 140 characters at a time. But if you go there, own what you say and let the chips fall where they may.

Marriage equality in the Supreme Court

With the success of marriage equality at the ballot box on Tuesday, nine states and the District of Columbia, now allow marriages between same-sex partners. And the failure of the ballot initiative in Minnesota, which would have preemptively halted any judicial or legislative allowance of marriage equality, could be taken as a reflection of new societal views.

The question is how that affects the SCOTUS's decision as to whether to take any of the marriage-equality cases currently pending before it and, if it does, how to resolve them. One view has been that SCOTUS would not take the lead on this; instead, (as it did with anti-miscegination laws), it would await some critical mass of states getting to equality on their own, then step in to yank the remaining states into line. Of course, we do not know what that critical mass would be.

Before Tuesday, I would have said this would mean the Court denying cert in Perry (the Prop. 8 case), especially in light of the narrowness of the Ninth Circuit decision. But is 9 states, and some momentum on ths issue, enough? And is it enough for the Court to take the leap and say that barring same-sex marriage violates the Fourteenth Amendment (assuming there are five votes for that position)?

The DOMA cases present a much trickier issue on this point, because the Court is virtually obligated to take one of these cases. It cannot leave a situation in which a federal statute is unconstitutional, and thus inappicable, in just the Second Circuit (where two of the nine equality states are and a third recognizes same-sex marriages performed elsewhere). No we're back to the question of whether nine states is sufficient to give the Court popular cover (again, assuming five votes for marriage equality).

Supreme Court 2012: Bailey v. United States and Detention During a Search Warrant

Thanks to Danny and the Prawfs folks for having me back this month.  I plan to post a little on the fall law review submission process like I did on my last stint, but first I wanted to report on an interesting (and potentially important) criminal procedure case that the Supreme Court heard yesterday.

The Supreme Court heard arguments in Bailey v. United States (Docket No. 11-770) yesterday rescheduled from October 30) that presented the question of whether a police officer, incident to the execution of a search warrant, may detain a former occupant who has left the immediate vicinity of the premises.

The real question in this case is how far with the Court will expand or limit the rule set out in Michigan v. Summers.  Michigan v. Summers adopted a categorical rule that police may detain an occupant of the immediate premises incident to the execution of a search warrant. The Court is now asked to decide whether to extend the Summers rule to allow police to detain, incident to the execution of a search warrant, a former occupant who has left the immediate vicinity of the premise and has driven almost a mile away and handcuff and return him to the premises while executing the warrant.

The brief facts here are that detectives obtained a “no-knock” warrant to search a basement apartment based on a tip from a confidential informant that the apartment was occupied by an individual known as “Polo, a heavy set black male with short hair” who had a .380-caliber handgun, which was the object of the warrant. Before the warrant was issued, two detectives arrived at the house in an unmarked police vehicle to survey the premises. Another team of officers arrived shortly after to execute the warrant.  When detectives saw two men fitting the description of “Polo” leave the premises, they followed them out of the driveway and pulled their car over about a mile down the road.  They conducted pat-down searches of both men and then returned them to the basement apartment in handcuffs in the back of the police car.  The search of the apartment revealed ammunition, drugs and drug-related paraphernalia in plain view, though no .380-caliber handgun was found.  In determining whether the evidence should be suppressed, the Court considered whether these individuals were properly detained under Michigan v. Summers even though they were apprehended about a mile away from the premises.

The rationale under Michigan v. Summers for detaining individuals while executing a search warrant included officer safety, facilitating the orderly completion of the search, and the interest in preventing flight.  The major dispute in this case is how broadly to interpret the Summers rule and whether its purposes still apply to an occupant who is no longer at the place the warrant is executed. Petitioner contends that the three justifications underlying the adoption of the categorical rule in Summers are not applicable here, because a person who has left the immediate vicinity of the premises poses minimal risk to officers executing the warrant. 

During oral arguments, the Justices pressed the government on this issue.  The government argued that the officers face a risk when they see individuals leaving the location of a search that they may return at any time to the premises while the officers are conducting the search.  But during arguments, Justice Sotomayor pointed out that there is always a threat that the owner of a home will return while police are effectuating a warrant and this is precisely the reason why officers may employ two teams of officers—as they did in this case—one to survey and the other to conduct the search. 

The government on the other hand focused its briefs and arguments on the realities for law enforcement not being consistent with strict limitations of the Summers rule. First, the government notes that Summers in dicta rejected a geographic limitation on the detention of individuals at the premises by viewing “the fact that [the defendant] was leaving his house as lacking any constitutional significance.” This means that the detention may take place outside the residence itself, rendering the petitioner’s argument to the contrary moot. Second, the government argued that, under the reasoning set forth in Summers, when officers observe an occupant depart the premises, they have an articulable suspicion to detain the occupant because the existence of a valid search warrant gives rise to the inference that someone inside the home is committing a crime. Both these explanations undermine the need for a geographic limitation on Summers.  In oral argument, though, the Justices pressed petitioner and the government on this issue to determine what standard should apply in limiting police in detaining
individuals when effectuating a search warrant.

The Court’s decision in Bailey v. United States is likely to have a number of meaningful ramifications. From the outset, it will resolve a deepening divide in the circuit courts. In addition to the Second Circuit in the opinion below, three courts— the Fifth, Sixth, and Seventh Circuits—have chosen to extend Summers based on fact pattern substantially similar to that of the case at bar. Two courts—the Eight and TenthCircuits—have read Summers narrowly and held that the rule does not apply outside the fact pattern presented in that case. 

It is somewhat unclear what practical impact a holding in either direction would have on police work. The government lists several cases and evidence from FBI reports which document instances of individuals coming to a location where a search warrant is being executed and causing serious injury or death to one or more of the law enforcement officials on site. However, as the petitioner notes, the government does not cite an instance in which an individual who once occupied a premises returned during the execution of a search warrant. Further, the government argues that cabining Summers to its facts would require that police take a “now-or-never” approach to warrant execution and detention; that is, either execute a warrant prematurely to detain occupants of the premises, or allow the occupants to leave outright. This may or may not be a completely accurate depiction of the law enforcement landscape, however. As the ACLU notes in its amicus brief, police have several alternatives, including surveilling and following the suspect until they develop probable cause to detain and subsequently search the individual for contraband, or making a Terry stop based on reasonable suspicion for erratic driving or for obvious attempts to avoid police contact.  Because the government does not present much by way of firm, reliable evidence of how this rule would disrupt (or enhance) police practice, the impact on subsequent police activity is difficult to predict.  Regardless, it appears from oral argument that the Supreme Court is looking for a rule that may give clear guidance to officers on when they can and cannot detain individuals while executing a warrant.

Politics, partisanship, and democracy

My thoughts and prayers go out to all the Prawfs family (including my own family in NJ, NYC, and Long Island), friends, and readers dealing with the effects of Sandy. I hope you all are safe and that you have your power back soon. I want to consider two things with respect to Sandy's effects on next week's election.

First, folks are beginning to talk about how the storm will affect the mechanics of the election and whether state and local governments (who wield exclusive authority to administer the electoral process) hit by the storm will be ready and able to carry out an election, both with early voting ongoing this week and Election Day itself next week. This has lead to discussions of whether the election could or should be delayed, either by congressional action or by unilateral actions of individual states or localities. Here is some good analysis of the constitutional and statutory issues involved. Rick Hasen argues that this again demonstrates the need for Congress to create a uniform national scheme to respond to natural and other disasters that affect voting. Hasen calls this another example of Congress failing to act on what should be non-controversial issues resolvable with non-partisan solutions. He compares congressional inaction here with congressional inaction on ensuring continuity in the House of Representatives in the event of a terrorist or other attack.

Actually, though, the current situation brings to mind a different concern on continuity of government, a subject on which I wrote in my early scholarship. I have argued that if we ever get into the statutory line of succession (below the Vice President), we should hold a special election as soon as practicable (within 3-6 months, for example), so that the ultimate recovery from a mass catastrophe can be lead by a popularly chosen executive. But  I may have to rethink that, depending on how things play out in the next week. If a bad storm affecting five or so states can hamper a national election, it may not really be possible to hold one a few months after a catastrophic attack on the nation and the government itself.

Second, when asked about the election, New Jersey Governor Chris Christie responded as only he can: "I don't give a damn about Election Day . . . This administration, at the moment, could give a damn less about Election Day." Now, obviously the first concern must be ensuring public health and safety, getting roads and debris cleared, and getting the power back on. But Christie's bluster reveals an unfortunately blase attitude about the election and thus about democracy. It suggests that the election is not important; it is "partisan" and "political" and thus not what we should be thinking about in times of high-minded crisis, when we should put our differences aside and come together, blah blah. It is the same attitude reflected in 2008 when John McCain called for a suspension of the campaign and cancellation of the debate so he and then-Senator Obama could return to Washington to work on bailout legislation.

But, as I wrote four years ago, elections are the procedural element that most fundamentally identifies our socio-political system as democratic, as a system in which here, sir, the people govern. Partisan politics describe and define the process by which we select the "immediate representatives" through whom the people act in governing themselves. And elections work through a two-party adversarial process.

Thus, inability to carry out an election is no small thing and should not be treated, or discussed, as such. It would be no mere minor inconvenience if New Jersey or New York is unable to administer elections next week--or unable to efficiently administer elections in which those who want to vote are able to do so. It would be a genuine problem for the functioning of a supposedly democratic national government. Alternatively, if we really believe that we must "come together" and put all electoral conflicts aside and not concern ourselves with an ongoing election, then Hasen is right that we must establish mechanisms to postpone the whole thing or otherwise alter the rules. We should not ignore the problems or let the election go forward as planned and simply accept sub-optimal processes in those places still recovering from the storm.

Again, the election should not be the top concern at this moment, either for the people trying to recover or for the governments trying to help them. But neither should the election be pooh-poohed as an unimportant triviality beneath government concern.

A New Essay on the Roberts Court and the Press: Not a Free Press Court?

The abstract for my new essay , Not a Free Press Court?, is as follows:

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.

I wrote this small essay, which is now available on ssrn,  for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).

Public Opinion on Replacement Refs and the Supreme Court

Thanks to Dan and the rest of the regular Prawfs crew for inviting me back. 

I have been a hockey and baseball official since 1991, and I want to use my initial post on this guest-stint to discuss a parallel between judging and sports officiating.  As most know by now, the NFL's lockout of its officials ended last week after replacement officials -- whose performance had been criticized extensively since the start of the season -- made a particularly bad call that cost Green Bay its game against Seattle on September 24.

That said -- and I am certainly not defending the replacements' calls -- the NFL's key miscalculation when locking out the officials was not the poor quality of the replacements.  The key miscalculation was in not understanding the way that the public would perceive the replacements' incompetence.

Fans rarely perceive sports officials as providing their teams a benefit.  Rather, calls in favor of their teams are "right" or at least arguable, and in any event aren't dwelled on.  Calls against their teams, however, are tremendous injustices.  The result is that a controversial call makes one team far more upset than it makes the other team happy.

Accordingly, the replacement officials never had a chance. 

Nobody was ever going to think they did well.  If they did a perfect job, they would be perceived as no better than the regular officials.  And when they inevitably made mistakes (or even simply when their decisions were controversial), fans would speculate that the "real" officials would have made better calls.

It strikes me that the same phenomenon is at work with the judiciary.  Most people rarely see the courts as providing them anything positive.  A "victory" is when the court agrees with the position that the litigant claims has already existed; a loss makes the status quo worse for that party.

And this effect is true, I think, regardless of ideology.  Conservatives, especially originalists, become upset by non-originalist interpretations that tend to result in politically liberal outcomes.  But they are not similarly pleased by originalist interpretations, which they perceive as neutral.  By contrast, liberals see Warren-Court-era decisions as the status quo.  They therefore fear conservative retreat from those precedents and perceive liberal decisions not as "victories" but as the status quo's survival.

There is a saying among sports officials that we do a good job when we make both sides mad at us, because both sides are never going to be happy.  As the Supreme Court opens its term with speculation about whether there are still hard feelings about the healthcare case, I wonder if the Court, too, will inevitably find itself disappointing everyone. 

One-shot cases

Gerard Magliocca at CoOp poses a good question: What SCOTUS cases have been one-way (or one-day) tickets, in which the result and judgment is important but the reasoning has little doctrinal impact going forward. Gerard believes ACA is such a case, as is Bush v. Gore. In the comments, I suggested the obscenity cases from the 1960s, where the Court could not get a majority around any standard for obscenity but reversed conviction after conviction.

Are there other examples? Leave comments here or over at CoOp.

"Executive Overreach"

I have a short piece in the new issue of Commonweal, called "Executive Overreach."  It was solicited as part of a "what's important to think about, as the election approaches" series that the magazine -- a liberal-Catholic-(or Catholic-liberal)-leaning journal of opinion -- is running.  Here's a bit:

. . . Constitutionalism is about more than our particular charter’s text, the Supreme Court’s various decisions, or pieties about shared values and fundamental rights. It is an attachment to the enterprise of protecting human freedom and promoting the common good by structuring, separating, and limiting power in entrenched and enforceable ways.  It is a mechanism for conferring power and authorizing action, a vehicle for governing and getting things done, but it’s also an embrace of constraints, processes, and forms, and a willingness to accept delays, inefficiencies, and frustrations as unavoidable costs, perhaps even benefits. In constitutional
government, how and by whom things are done is at least as important as what is
done and when, or how quickly. And this is why it is troubling, rather than
inspiring, to hear the president keep saying, “We can’t wait.”

This is not a partisan concern. Both parties have been guilty of overreach . . . .

This is not a Tea Party point, even if the Tea Party sometimes makes it. It is certainly not an endorsement of the constitutional provisions that once entrenched slavery or a denial that some others are anachronistic. Nor is it a defense of the various congressionally created, non-constitutional rules that sometimes make a mockery of the idea of structured deliberation by setting up a maze of holdouts, vetoes, and hostage taking.

Electoral majorities will sometimes reward those whose proclaimed or perceived energy and vision are too big for the rules and who promise to ignore or abolish procedures that—especially during times of deep political divisions—seem to deliver only delay and dead ends. And yet, as Chief Justice Warren Burger observed almost thirty years ago, “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”  Those who designed the Constitution understood that political liberties are best served through competition and cooperation among plural authorities and jurisdictions, and through mechanisms that check, diffuse, and divide power. . . .

More free speech and ideology

Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.

I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?

Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.

Scalia, judicial ideology, and flag burning

Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.

As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.

More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.

Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.

A Reminder to Hiring Committees: Don't Google The Candidates?

Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.

Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII.  Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical."  The case settled for $125,000 after a judge denied cross-motions for summary judgment. 

Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.

The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):

A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.                                 

The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her.  Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.

 

More on mandatory tobacco warnings

A divided panel of the D.C. Circuit on Friday struck down FDA regulations requiring graphic warnings on cigarette packages, affirming, through different legal analysis, the district court and parting company with the Sixth Circuit, which upheld the graphic requirements. This case almost certainly will be in SCOTUS in March or April--we have a circuit split, one (divided) decision striking down a provision of federal law, and fundamental disputes about standard of scrutiny and the government's power to inform and influence the public through compelled commercial speech. In addition, reading the opinions shows how these compelled-speech concerns tie back to both mandatory ultra-sound laws and regulations of crisis pregnancy centers, so this case has much broader effect.

Procedural Siloing

So, in the wake of finishing my latest article, I’ve been thinking about doctrinal silos—areas where principles have evolved in ways that don’t conform to mainstream understandings developed elsewhere. 

Siloing is a particular problem in the constitutional law of civil procedure.  It’s one that is explored in this great article by Allan Erbsen, which focuses on personal jurisdiction, one of the most bizarre  doctrinal silos out there.  But there are plenty of other areas in the procedural field where siloing is a serious problem.   

Proceduralists, I think, will readily admit this is true.  But what causes it?    It is not an attractive phenomenon--no one likes cross-doctrinal inconsistency.  But it is depressingly persistent enough in the procedural field to make me think there are systemic reasons for it. 

Professor Erbsen, who focused on personal jurisdiction, suggested a curricular explanation.    As an accident of first-year curricular development, personal jurisdiction is a Civil Pro topic.   As a result, personal jurisdiction ends up in Civ Pro treatises and casebooks, not in Con Law treatises and casebooks.  The result… there is no cross-talk between the different fields.  Insights that refine our understanding of federalism or  separation of powers surge forward in the field of Con Law.  But sheltered in the Civ Pro cove, personal jurisdiction bobs along unaffected.

This is totally plausible.  But, it’s not the only possible explanation.  Below the break are some others I’ve been thinking about.

 Procedure as a Reformist Beachhead.    Because procedure is often perceived (sometimes unfairly!) by non-proceduralists as small-ball, it may be viewed as a low-resistance beachhead for factions of the Court seeking to shift the direction of doctrine in other, bigger stakes areas.  The result is that procedure ends up being a kind of conceptual Island of Misfit Toys:  It  gets saddled with lots of early, strained, experimental, half-baked opinions steathily attempting doctrinal revolutions that end up playing out in other different fields. 

The classic example is Pennoyer v. Neff.  As matter of first impression, it is not obvious why due process  became the hook for defining the constitutional scope of states’ jurisdiction.  It ended up as such because, in Pennoyer, Justice Field, smarting from his defeat in the Slaughter-House Cases, was using the driest of dry personal jurisdiction cases to smuggle in his controversial theory of substantive due process.  Once that beachhead was seized, the theory could be extended in other, far-afield cases down the road.    The result?  Personal jurisdiction doctrine gets saddled with Justice Field’s mystifying blend of due process language and territoriality concerns, rather than developing, as it should have, as an outgrowth of federalism and state sovereignty principles.

 Procedure as Bottom-Up Law.  Procedure also isn’t subject to effective Supreme Court control.   This is a function of limits on interlocutory appeals, plus the sheer mind-numbing volume of many types of interlocutory procedural rulings.  There are just too many of them and too few opportunities for appellate review.  As a result, SCOTUS can’t  effectively police the development of legal principles that intersect with those rulings.   

The upshot …. Procedural law is bottom-up law.  It tends to develop at the trial court level, not the Supreme Court level.    Twiqbal is an example.  The pleading principles announced in Twiqbal had already gelled over the 1990s and early aughts in federal trial courts.  As I note here (as have others elsewhere), SCOTUS didn’t create that shift.  It ratified it after the fact.    

One result of this kind of drift:  In the hothouse environment of trial management, free from much effective appellate oversight, familiar principles that play out across several fields can go on odd random walks.   

The way due process has developed as a check on class actions might be an example.  It is not obvious why due process guarantees class members a right to control their own claims, at least to the thoroughgoing extent that current law suggests. (This article by Sergio Campos makes this point  in thorough and convincing detail).  At a minimum, the development of due process as a restraint in the class field seems oddly disconnected from the procedural due process balancing framework the Court set out in cases like Connecticut v. Doehr.  And, understood as an application of  substantive due process, class members’  opt out rights have developed without the kind of searching historical inquiry typical of the Courts’ modern substantive due process opinions (e.g. Glucksberg).    

I suspect that what’s going on is that undertheorized appeals to due process proved to be a quick-and-dirty hook for counsel casting about for ways to advocate limits on mandatory class proceedings in the 1980s and 1990s.  And, in the era before Rule 23(f), minimalist due process decisions worked well enough for time pressured trial courts that weren’t in fear of searching appellate oversight. Two decades of repetition, first in briefs, then in lower court opinions, turned the idea that due process protects litigants' opt out rights into received wisdom. And all without any SCOTUS opinion that has ever explained how this conclusion fits the broader due process framework it had carefully developed in other areas.

 Procedure’s Transition Cost Problem.  The costs of switching to new doctrinal frameworks tend to be much higher in the procedural field.  This is again a function of volume.  Once, say, personal jurisdiction doctrine veered off in a bizarre due process direction, the cost of switching to some totally different framework is potentially huge—everyone would have to suss out how to apply the new framework  at the beginning of a lawsuit, and the number of lawsuits filed annually in which this must be done is astronomical.  Big doctrinal shifts can as a result generate huge amounts of research costs for litigants and satellite litigation for courts that can take years to work pure. 

Concerns about administrative costs and their equitable distribution  in turn may lead courts toward doctrinal conservatism—favoring changes that tend to preserve, rather than unsettle, familiar rules.  The upshot:  Doctrinal turns, however odd, tend to stick, even if it leads to a body of doctrine  that becomes conceptually orphaned from the way similar principles have worked out in other areas. 

Procedure as a Safe Harbor for Unprincipled Advocacy. Often, extending principles from one field to another yields a preference reversal.  Say, for example, that commonly accepted versions of originalism, applied to due process, undermines due process arguments against class litigation made by corporate defendants.   (And let’s just posit, for the sake of argument, that conservatives love corporate defendants!)  At the same time, let’s assume the same originalist due process arguments have implications outside the procedural field that favor conservatives.  If both conservatives and liberals are outcome oriented, you can again expect these originalist arguments won’t be made. Conservatives won’t make them because they don’t like the outcome.  Liberals won’t make them because they don’t the methodology and its broader implications elsewhere.    

The accusation of being unprincipled is usually a check against this sort of thing—to avoid that damning charge, people who strongly advocate a principle in one area feel compelled to bite the bullet and accept its extension in others, outcome be damned.   But the more procedural law is freighted with idiosyncrasies and doctrinal quirks as a result of the other sources of siloing, the more accustomed we become to thinking of procedure as a conceptual oddball.  The result…. the reputation costs for advocates of a particular principle or methodology may be much lower if they do not press for a consistent application of their preferred principles in the procedural field.

Fourth Circuit rehearing on crisis pregnancy centers

The Fourth Circuit last week granted rehearing en banc in a series of cases challenging municipal regulations requiring "crisis pregnancy centers" to post disclaimers identifying all the reproductive services (namely birth control and abortion or referrals for those services) that they do not provide. I wrote about the panel decision and Jennifer Keighly sharply criticized it. The core First Amendment issue is whether this is regulation of commercial speech or of a regulated profession in which disclosure obligations are generally permissible, although I believe these cases provide a nice compare-and-contrast with the litigation over mandatory ultrasound laws. There also are some underlying procedural problems involving converting 12(b)(6) to summary judgment and refusal to provide an opportunity for discovery.

No one wrote to concur or dissent from the grant of rehearing, not even from the panel members, so we do not know what anyone is thinking right now.

Free Speech Rights in Social Media for College Students: Tatro v. U. of Minn.

I've been working on putting together a comprehensive list of social media cases with a First Amendment angle, and I recently came across the fascinating case of Tatro v. University of Minnesota, 816 N.W.2d 509 (Mn. 2012), which the Minnesota Suprem Court decided at the end of June.  In case you missed reading this case in June, as I did, here's a summary.

The University of Minnesota sanctioned Tatro, a junior in its mortuary science program, by giving her a failing grade in her anatomy lab and forcing her to undergo a psychiatric evaluation because she posted “violent fantasy” (pretty tame stuff, really) and “satiric” comments about her human cadaver on Facebook.  Posting or "blogging" about her cadaver violated the University’s “Anatomy Bequest Program” policies, the Mortuary Science Student Code of Professional Conduct, and the rules of her anatomy course. She appealed the University’s imposition of sanctions on her speech through a writ of certiorari. The Minnesota court of appeals affirmed the constitutionality of the sanctions, and the Minnesota Supreme Court granted further review and also affirmed, basing its decision on the unique nature of the professional program in which the student was enrolled. 

The Minnesota Supreme Court treated the case as one of first impression, noting that the constitutional standard governing “a university’s imposition of disciplinary sanctions for a student’s Facebook posts that violate[ ] academic program rules” is “unsettled.” Although the court of appeals had resolved the case by applying  Tinker v. Des Moines Inc. Comm. Sch., the Minnesota Supreme Court held this standard  to be inappropriate because Tatro was disciplined not for the disruptiveness of her post but for its lack of “respect, discretion, and confidentiality in connection with work on human cadavers.” The Court instead determined that the appropriate standard was whether the university had “impose[d] sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.” (The Court did not cite any particular Supreme Court precedent as the basis for this standard).  Applying this new standard, the Court concluded “that dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals.”  Having previously noted that the asserted purpose of the University’s rules was to “educate students” about their ethical duties in the funeral service profession and “maintain the viability of the Anatomy Bequest Program,” the Court found the academic program rules to be narrowly tailored even though they completely barred (!) blogging about cadaver dissection or the anatomy lab.  Tatro clearly violated these rules by giving her a “cadaver a name derived from a comedy film” and engaging in “widespread dissemination” of her comments, first through Facebook and later through the news media.  Consequently, punishing her for violating them did not abridge her First Amendment rights. 

This case raises some interesting issues, which I'd explore in more detail if I weren't staring down the barrel of multiple deadlines.  Some obvious questions raised are as follows: Is a standard proscribing "disrespect" unconstitutionally vague? How can a complete ban be narrowly tailored?  (Can't help thinking of Atul Gawande's writing in this context.)  Why doesn't ordering a psychiatric evaluation for "unprofessional" speech violate the First Amendment? (The Court didn't address whether the speech constituted a "true threat.")

As a media law professor, I noted with interest that my fellow media law professor Raleigh H. Levine, from William Mitchell College of Law, was an amicus in the case for the ACLU, along with Teresa Nelson.

Gotta' Love Crim Pro Federalism

I just finished teaching a summer session of criminal procedure. Sometimes, by the end of the course, I feel like I have spent more time teaching what the Fourth Amendment doesn't do than what it does do. I teach in Washington State, however, where Article I section 7 of the state constitution provides so many more privacy protections that I can't track all of them for my students as we study the Fourth Amendment—consent rules on refusal warnings and apparent authority, Leon's good faith exception, inventory searches, the automobile exception, open fields, pretext stops, pen registers, garbage searches, student drug testing, sobriety checkpoints, and I'm sure more that I'm overlooking. Here's a new Washington State Supreme Court decision, issued today, dealing with warrantless searches of students at school. Bravo to state constitutions!

Which state-specific criminal procedure rules do readers think are the most important or significant departures from U.S. Supreme Court doctrine? Personally, I always have been partial to New York State's "indelible right to counsel," particularly since the U.S. Supreme Court decided Montejo v. Louisiana.

Unreasonable Suspicion?

The Ninth Circuit issued an interesting Fourth Amendment decision last week on the subject of reasonable suspicion, in United States v. Valdes-Vega. The "reasonable suspicion" standard dates to Terry v. Ohio, where the Supreme Court upheld limited, investigative seizures on less than traditional probable cause. Instead, following Terry, reasonable suspicion justifies the police in stopping and detaining someone for investigation sufficient to confirm or dispel their suspicion of criminality. A reasonable suspicion, the Supreme Court has held, requires "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."

In Arvizu v. United States, however, the Supreme Court, reviewing another Ninth Circuit decision, made clear that lower courts must consider the "totality of the circumstances" when evaluating reasonable suspicion. Court should not "divide-and-conquer" each fact, however common or innocent each fact may prove in isolation, if reasonable suspicion is supported by the evidence in the aggregate. This understanding of reasonable suspicion has given the police a lot of discretion to stop and investigate individuals without proof of criminality, so long as prosecutors can compile a list of non-criminal factors that, considered as a whole, made the police reasonably suspect criminality. Critics have challenged this standard as giving the police too much discretion with too little judicial review.

In Valdes-Vega, the Ninth Circuit may have pushed back, perhaps fairly hard, against this reasonable suspicion standard. This case involved a vehicle stop and drug seizure in California, about 70 miles from the U.S.-Mexico border. Interestingly, the police observed Valdes-Vega speeding and driving erratically, but they could not stop him to cite or arrest him for traffic violations, because the police here were federal border agents. So, the agents needed to articulate a reasonable suspicion of criminality to stop the vehicle. In arguing that the agents reasonably suspected drug or alien smuggling, the Government highlighted Valdes-Vega's erratic driving, the proximity to the border, Valdes-Vega's decrease and increase in speed near a closed border checkpoint, Valdes-Vega's use of a large truck with Baja California plates, the history of smuggling in the area, and the agents' training and experience. The district court found reasonable suspicion for the stop. But the Ninth Circuit disagreed, concluding that reasonable suspicion on these innocuous facts would permit seizures based on "'broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.'" The Ninth Circuit Blog recently commented on this opinion: "The Ninth, we hope, is becoming increasingly uncomfortable with the 'border exception' swallowing all Fourth rights in the West."

Truthfully, the dissent in Vades-Vega did make a good point on the law that the majority seemed to violate precisely Arvizu's no-divide-and-conquer approach to reasonable suspicion analysis. And maybe this case simply reflects "liberal" Ninth Circuit judges vying for yet another Supreme Court reversal. But on the other coast too, in cities like New York and Philadelphia, critics of the reasonable suspicion standard are challenging police "stop and frisk" programs as too discretionary, abusive, and inefficient. Courts in those jurisdictions also may be attempting to toughen the reasonable suspicion standard. Are these judicial decisions, backed by vocal criticism of police action in certain communities, just blips on the Fourth Amendment radar, or a sign of coming changes to the reasonable suspicion standard, such as an increased emphasis on arrest efficiency?

Encroachment on Presumption of Innocence? DNA evidence from arrestees

Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.

I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another.  CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.

Wow.

Scalia's proving to be a bigger diva than I ever expected.

“He’s a court of appeals judge, isn’t he?” Scalia, 76, said of Posner. “He doesn’t sit in judgment of my opinions as far as I’m concerned.”

 

Quintessentially American: Suing the Lethal Presidency

I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.

In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view.  At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:

"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in     the most basic sense of the word. The government has killed three of its citizens and we think the     government has to account for its actions, first to acknowledge, then to explain. We believe that if you     accept that the government has the authority to kill its own citizens without acknowledging its actions,     you have set up an authority that will one day be abused. Once you create this power, this power will     sit around available to every single future president.

That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.

 

 

Is the Availability of the Insanity Defense Constitutionally Required?

Yes, or at least that's what an amicus brief I signed  argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)

The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.

First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...

So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.

Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.

The Scalia Dissent

Nice NPR piece today from Nina Totenberg on notable dissents by Justice Scalia, including his fiery dissent this Term in the Arizona immigration case. I wonder, has anyone ever proposed a law school seminar, "The Scalia Dissent?" A Scalia-dissent seminar would be an engaging and, I suspect, lively course of study for students. Did Nina Totenberg overlook any particular Scalia dissent highlights that should have made her list?

A couple must-reads

Vaguely apropos the end of my last post, I want to point you to Marshall Poe's wonderful new essay in Inside Higher Ed, which explores the moral imperatives toward open-access university press publishing. I think Poe's right on the money.

Less relevant to us as academics but more relevant as persons interested in plain justice and the veneer of law, you've got to check out this very interesting blog post (and what will be a series of posts on Obama's lethal presidency) by Tom Junod over at Esquire's politics blog. Junod's blog discusses the killing of Al-Alwaki's American son by drone missile and its putative legality.

Some of you know I favor a strong forward lean on terrorists and this seemingly endless war with the Islamofascists. (And yes, there's a personal component to it, having lost my childhood best friend to a pipe bomb on a Tel Aviv beach back in 1990. Discount or consider accordingly.) Nonetheless, ever since Charlie Savage's clutch reporting in the NYT has made clear to us the scope of the problem, I have been very disappointed by the secret legal reasoning that Obama has relied upon to warrant his selection of targets and his authorization of the killing of those targets, even when they're American citizens. I love so much of this country, but the idea that there's a secret document propounded from within the Executive branch that explains the rationale for killing putatively innocent 16 year old American citizens is abhorrent to those of us who cherish rule of law values about a knowable and known source of law.

I hope that those reading this blog -- those who (also) consider themselves friends of the Obama regime, and those who are his devoted political opponents -- will continue to press for transparency and accountability in this respect. It's one thing to say to suspected American terrorists, you're on our knock list unless you surrender peacefully in the next 15 days, at which point you can receive due process. A more modest approach is Junod's prescription: an ex post accounting of any dead Americans killed abroad by the American government. But we apparently have no hope under the current administration for such weak but non-trivial procedural protections ex ante or for ex post oversight. Instead we have a different regime altogether, one where it's permissible to kill American children abroad without any such notice and safe opportunity to surrender, and on grounds that are inscrutable to all outside the White House. Shame shame.  Obama can do better, and we deserve better as a nation. Pass the sunlight, please. And Republicans, feel free to use this as fodder for your daily foolishness scrums with the Dems too, but remember, what's good for the goose is good for the gander.

 

Politics, principle, both, neither

Orin Kerr offers a great hypo--what if Roberts initially voted based purely on politics (support the Republican preference, payback Obama for opposing his nomination), but then changed his vote based on principle. Orin uses this to make the absolutely correct point that we cannot tell whether anyone voted (or changed their votes) based on principles, politics, or some combination of both by looking at nothing other than their votes.

This recent round of politics v. principle debate is reprising, with different terminology, the same mindless tropes about "judicial activism" or "legislating from the bench." Just as judicial activitism is a decision with which I disagree, if I agree with the decision, it must be based on principle and if I disagree with it, it must have been based on politics.

Constitutionality and political workability, redux

Back in April, I wrote about a Ronald Dworkin essay that argued that ACA was the only politically feasible way to obtain universal health care and that the Court must consider the political realities in deciding on constitutionality, which is the point of McCulloch. If the end (universal health care) is proper but Medicare-for-all is not politically feasible, must the Court defer to Congress choosing a different, politically feasible means to that proper end, so long as it does not run afoul of an individual liberty (which Barnett, Rivkin, et al. continually disclaimed).

One common opinion is that this decision (invalid under Commerce, valid under Tax) will not have much practical effect. Congress rarely enacts mandates and now, when it must do so, it can rely on the Taxing Power. But here is where political reality comes back into play. We are in a period in which no one in Congress wants to enact anything called a tax. First, it makes it  impossible to get any Republicans on board, given the influence of the Tea Party and/or Grover Norquist and the generalopposition to all taxes. Second, it is political death because a tax always can and will be demogogued into a "tax increase" and used to bludgeon any official to death in the next election.

So the effect may be to make it impossible for Congress to act vigorously in many areas going forward, because one power source has been cut off and the one that has been allowed is not practically useful.

What does it mean to "declare" a law unconstitutional?

We often hear talk of SCOTUS "declaring" a law unconstitutional or "striking down" a law. The problem is that neither of these phrases is a recognized legal concept. Instead, it is a political concept, used to criticize (or praise) the Court in the realm of public debate. Plus, constitutional decisions are made in the context of resolving a specific legal case or controversy. So just as important as the constitutional determination and declaration is the formal resolution of the case, the "It is so ordered" that comes at the end of every opinion.

This thought came to me after a question was posted to a listserv asking how many federal laws SCOTUS had "declared unconstitutional" this past term. The answer is not simple, because litigation context matters. Looking at the list of decided cases from October 2011, I come up with five. But only one conformed to the popular understanding of a law being declared unconstitutional--that we are left as if the law never was enacted and it cannot be used or enforced at all going forward. The rest require unpacking.

The obvious one is the Stolen Valor Act in United States v. Alvarez, which reversed Alvarez's conviction and functionally enjoined future prosecutions under the Act. But then consider:

• In Coleman v. Maryland Court of Appeals, the Court held that a state could not be sued for damages under the Family and Medical Leave Act, because Congress could not abrogate sovereign immunity because the law was not congruent and proportional. Stated differently, the Court held that the FMLA violated the Eleventh Amendment to the extent it made states subject to suit. In other words, the FMLA was unconstitutional in thie case. But would the public (or even lawyers) ordinarily think of it that way, since the Court did not question anything else about the constitutional validity of the FMLA or its future uses?

• In Hosanna-Tabor Lutheran Church v. EEOC, the Court held that the ministerial exemption, a product of both of the First Amendment's religion clauses, barred a lawsuit against a church by (or on behalf of) a minister. Stated differently, the Court held that the ADA violated the First Amendment's in a claim against a religious organization by a ministerial employee (note: this was a product of the Court's (correct) decision that the ministerial exemptin is a merits-centered affirmative defense). In other words, the ADA was unconstitutional in this case. But, again, do we think of it that way, since the Court did not question anything else about the constitutional validity of the ADA?

• Finally, there is ACA. Chief Justice Roberts would, I expect, argue that his opinion established that the individual mandate was unconstitutional under the Commerce Clause (a conclusion with which five agreed), even though it was constitutional under the Tax-and-Spend Clause, and the Medicaid expansion unconstitutional under the Spending Clause (a conclusion with which seven agreed), even though the Court subsequently saved the expansion by narrowing it only to strip new funds. (Of course, this depends on how we understand the Roberts opinion, which is a point of contention). But assuming Roberts's preferred reading, since both provisions ultimately remain valid and enforceable (as narrowed) going forward, does the public understand this as invalidating the law?

ACA Reflections, Part II: Here's What Really Bugs Me

One more comment on the Supreme Court decision in NFIB v. Sibelius, and then I'll stop talking about it (for now). One thing that has bothered me all along about the way that those on the right talked about the individual mandate is the way they conceptualize the autonomy interest and hence the "choice" involved. Since Roberts's and the the joint dissenters' opinions both more or less incorporated the arguments floating around among conservative legal academics and in public discourse, it assumes this same bothersome conception of choice. What's more, I find connections between this conception of choice and the current approach to that other "choice"-laden domain--abortion law.

More below the fold.... 

The conception I am referring to is the classic libertarian conception, I suppose. It is the notion that choices are made at a specific, discreet moment in time, based on preferences that are more or less exogenous. It assumes choices that are unconstrained--or at least, that any existing constraints are legally irrelevant. Thus, according to this view, individuals are generally uninsured because they choose not to purchase that particular consumer product, and it is irrelevant that they may later consume health care that they cannot pay for, because the focus of this argument is only on the singular moment of choice.

Of course, as many have pointed out, most of the uninsured float in and out of the insurance market, and they often don't "choose" to be uninsured but are uninsured because they lose their job-based insurance and then can't get insurance on the individual market because of cost prohibitiveness and/or pre-existing conditions. They consume health care regularly, whether insured or not, and "choice" has very little to do with it -- other than perhaps the "choice" to forgo needed preventive care or early screening due to cost. Of course, this is not true of all of the uninsured, but it is true of the overwhelming majority of them.

Similarly, many of the anti-abortion measures that are currently being considered or passed in the states--such as those to require women's choice to be more informed by showing her an ultrasound, making her hear the fetal heartbeat, and/or giving her certain information about the fetus (such as that it is a "whole, separate, unique, living human being") focuses in much the same way on a "choice" as occurring at one moment in time, mostly unconstrained, and independent in some bizarrely unrealistic way. Taken even in their best light and at face value, such laws seem to assume that this information--perhaps given with a 24-hour waiting period for it to really "sink in"--can change the woman's choice, because the choice occurs in this 24-hour-or-so interval, during which she gathers the information about abortion and makes her free and autonomous choice. The law is aimed simply at making sure she has enough information to make a truly free and informed choice. Again, for some women, this may well be how it works, but it ignores the multiple ways in which the decision for many women is not entirely free and autonomous, beginning with the (not always entirely free) decision to become pregnant in the first place, the constraints placed on her by financial, familial, and job concerns, and so on. More information about the fetus is simply not going to affect any of those constraints.

This critique of the atomistic view of the individual is, by no means, a new one or one that is original to me (see, e.g., Robin West). But it is one that remains relevant. What do you think is the best response to it?

How Not to Criminalize Cyberbullying

My co-author Andrea Pinzon Garcia and I just posted our essay, How Not to Criminalize Cyberbullying, on ssrn.  In our essay, we provide a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which our essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, we contend that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, leading to pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreaching in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. Our essay attempts to give legislators the First Amendment guidance they need to distinguish the types
of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization. To see the abstract or paper, please click here or here. 

 

 

Chief Justice Roberts and the ACA cases

Now that I have the benefit of a long time's reflection about, and critical distance from, Thursday's decision (insert appropriate emoticon here, to signal that I'm aware of the funny-absurdity of four days being a "long time" in blog-world), a few thoughts about the ACA cases, and the Chief Justice's opinion in particular, are starting to come together.

First, I am surprised and (maybe naively) disappointed by the almost-Orwellian "two minute hate" (which, I suppose, could go on longer) that has erupted in the world of talk-radio and in sectors of the right-leaning blogosphere towards the Chief.  One would think he'd suddenly become an amalgam of Bill Douglas (or maybe David Souter) and Bill Ayers, this former law clerk to Justice Rehnquist and lawyer for Ronald Reagan.  (I heard a radio guy say, "I knew it all along, this guy is no conservative!"  But this, of course, is insane.)  All this because he didn't vote to strike down a law that (a) remains repealable, if it's so bad, and that (b) most people -- including some who are committed to judicial enforcement of the Constitution's structural features -- thought until recently was, even if seriously wrongheaded, probably constitutional under the relevant precedents?  And, apparently, the fact that he somehow got two "liberal" justices to sign on to what I think is the first decision since Dole to put any teeth in the "there are limits to the federal government's ability to regulate-by-spending" idea (an idea that is, as I've argued, essential to any meaningful "federalism revolution") seems, in these quarters, to count for nothing.

Second, it is pretty much universally believed (see, for example, Jessie's recent post), so far as I can tell, that the Chief Justice's argument that the mandate may be regarded, for constitutional purposes, as a "tax" -- not because it obviously is one but in order to save a major statute enacted by the Congress and signed by the President -- is glaringly unconvincing, and that the Chief embraced this argument for "political" reasons.  I'll go out on a limb, and say that, in my view, what the Chief actually says -- e.g., that it is possible to regard the mandate, given all the circumstances, as, functionally speaking, enough like a tax to justify taking the avoidance-canon route and upholding what would otherwise be an unconstitutional law -- doesn't strike me as notably less convincing than a lot of things that the Court has done and that many law professors have welcomed.  I have not thought enough about the question, I admit, but it does not seem like we're talking "Yoder was about hybrid rights"-unconvincing here.  And, the very existence of this route -- the idea that unelected federal judges should try, if it's possible, within reason, to interpret federal statutes in ways that keep their existence and merits in the political arena -- is "political," isn't it?

Third, I certainly hope it is not true -- I am confident that it is not -- that the Chief changed his vote merely because some critics were (lamely, I think) anticipatorily complaining that it would be activist, illegitimate, etc., etc., for the Court to strike down the law.  (High dudgeon about how shocking it would be for the Court to strike down the ACA, coming from folks who, I suspect, think it was Wise and Good to invalidate, say, the death-penalty or abortion-related laws in dozens of states is a bit hard for me to take seriously, as is disingenuous praise from former-and-future critics of the Chief for his "statesmanship" here.)  But, here's another possibility.  I know, I know, it sounds naive, but:  Perhaps the Chief Justice really did come to believe, during the Spring, that -- especially in circumstances like the ones surrounding the ACA cases, which were decided months before a presidential election, and which involved the President's primary legislative accomplishment, and which were vigorously debate (even if unedifyingly enacted) -- it would be a bad thing -- not for him, or his "legacy", and not even just for the Court itself -- for the Court to strike down the mandate by a 5-4 vote, on a theory that is, even if sound, certainly debatable among reasonable and informed people.  And so, having come to believe this -- having changed his mind -- he took the "out" that the "it's permissible to regard this as a tax" argument offered.  It's not as if (contra, e.g., Roe) he put a bad policy beyond the reach of correction, or voted to remove a deeply contested and inescapably moral question from the political process and to constitutionally entrench what many regard as the wrong answer to that question; to the extent he constitutionalized anything, it would seem to be a pretty hard-core Madisonian approach to the Commerce Clause, the Necessary and Proper Clause, and the Spending Power.

And, of course, he wrote Hosanna-Tabor.  Yay, Chief!

So, did John Roberts Succeed? Some thoughts on being too clever by half.

Thanks to Dan for having me back!

Though I'm not sure I can add much useful insight to the polyphony already out there about the Supreme Court decision in the Affordable Care Act case, the question that's moving me to blog, now that we're a few days out, is whether Chief Justice John Roberts in fact succeeded in his ostensible goal--that is, convincing the nation that this was not a politically or ideologically driven decision and that the Supreme Court is not a political/ideological institution.

Obviously, the disposition of the case did not ultimately break down on ideological lines. No one can dispute that. But at the same time, from this postgame perspective, Roberts's rather cunning opinion appears to me to be more politically driven than it would have if he had just voted with the conservatives. 

 

First, it's pretty much an accepted fact, among legal academics and, I'm guessing, the public at large--especially after exposés like this one on Roberts's "switch" in time--that the decision was crafted primarily (or exclusively) to achieve Roberts's political goals. Second, it is pretty unpersuasive from a doctrinal perspective. And third, it is almost Marbury-like in its simultaneous giving-and-taking-away of authority from the political branch. 

Ultimately, I doubt the opinion itself will have much staying power--which is another way in which it, ironically, resembles Bush v. Gore (the type of precedent Roberts was presumably trying not to re-create). I guess I just wish that Roberts had done the right thing by, well, doing the right thing--not by crafting the most politically cunning decision since Marbury v. Madison.

 

Comments on ACA post-mortems

A couple of comments on other people's commentary on the ACA decision:

1) At CoOp, Joseph Blocher is "genuinely confused" by Chief Justice Roberts's explanation for why his Commerce analysis was necessary. I discussed what I believe to be his syllogism on this, although I doubt its merit. I previously raised the issue of how this plays out, as with ACA, when Congress enacts legislation pursuant to several powers. Joe raises the opposite concern: Suppose Congress enacts legislation explicitly relying on only one power and the administration defends on that power alone. Can the Court decide that the law "reads more naturally" as grounded in a power on which Congress never relied and analyze that power (as a necessary part of the decision and thus part of the holding) before discussing the power on which Congress actually relied? That would create a truly strange way of understanding congressional power and the scope of judicial review. It is also ironic given Republican instence at the start of this Congress that all laws include explicit reference to the power source behind the law. Can courts now ignore (or supplement) what Congress says?

2) At Balkinization, Joey Fishkin (who predicted the result a couple of weeks ago) call the decision a "massive victory for liberalism" because ACA will now be implemented and soon will become part of the fabric of the social compact. People will become accustomed to having health care or its option or to paying the minimal tax knowing that health care and health insurance will be available when (not if) they need it.

I want to flag one of Fishkin's points: "The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness." This is an interesting point, both in the rhetoric (which he accurately describes) and in the demographics. Are otherwise-healthy 25-year-old women more likely than similarly situated men to have and use health insurance because of gynecological needs? And how does (or did) that gender disparity play in the overall legal and scholarly debates?

The 2011 Term and the Progressive Legal Agenda

With the ACA decision in the rearview mirror, I thought I'd take a quick stab at a more holistic reaction to the Supreme Court term that effectively came to a close yesterday. And at first blush, it certainly seems as if the October 2011 Term was a shockingly successful one for progressives--especially if one considers the bullets that were dodged. Maybe it's just that the bar is so low in light of the past few Terms, but here are a few highlights:

• In the headline-grabbing cases from this week, the Court came within one vote of invalidating the entire ACA; within two votes of leaving all of SB 1070 intact; and within one vote of allowing juvenile life without parole to persist. And yet, we wake up today with the ACA intact, SB 1070 largely gone, and juvenile life without parole a relic of a misbegotten past.
• In the same week, six Justices held that the First Amendment prevents the government from criminalizing harmless lying; and the Court dumped a case that many suspected would recognize new limits on Congress's power to empower private citizens to sue to enforce federal laws.
• Going back a few months, this was also the Term where the Court came within one vote of eviscerating Ex parte Young, only to punt; where 5-4 majorities produced surprisingly progressive decisions in three high-profile ineffective-assistance-of-counsel cases (to say nothing of the 7-2 outcome in Maples); and where the Court made a splashy, if limited, step into the Fourth Amendment consequences of 21st-century technology.
• And, lest we forget, the Court also found ways to duck huge constitutional questions in both FCC v. Fox and in the Texas redistricting case back in January, sidestepping the soon-to-be-squarely presented question about the continuing constitutionality of the preclearance regime created by section 5 of the Voting Rights Act. 

I don't mean to oversell the point. I have to think that progressives certainly won't be happy with decisions like Knox v. SEIU; the double-jeopardy analysis in Blueford; Florence (the prison strip-search case); Coleman (the FMLA/Section 5 case); and a host of decisions (and decisions not to decide) that I'm sure I'm forgetting and/or underselling. And it also says everything about how low progressive expectations are that the Court ducking big decisions is, in many cases, tantamount to a progressive "victory." But even some of the "defeats" for progressives came on far narrower terms than they might have, such as the reasoning-less summary reversal in ATP v. Bullock (the Citizens United sequel)--which would almost certainly have looked much different on plenary review.

To be sure, there are storm clouds on the progressive legal horizon: the UT affirmative action case; Shelby County and the future of the VRA; the reargument in Kiobel; the Article III standing question in the constitutional challenge to the FISA Amendments Act; and a host of other cases in the food chain in which the Court's conservative majority is likely to assert itself at the expense of progressives. But that's next year. For now, I imagine most progressives will look back on the 2011 Term with a massive sigh of relief about what could've been, but wasn't.

The ACA and the Marbury Meme: Two Reactions

In light of the e-forrests being felled over today's Supreme Court decision re: the Affordable Care Act, I'm loathe to say much of anything, both because (1) life goes on; and (2) we're reaching that point in the proceedings where everything has been said, it's just that not everyone has said it.

Nevertheless, I wanted to interject two brief rejoinders to one of the memes lurking in the (ever-proliferating) analyses of today's decision--i.e., that Chief Justice Roberts' majority opinion was a political masterstroke (a la Marbury v. Madison) insofar as it allowed him to save the Court while "gutting" the Commerce Clause; or, on different terms, that "supporters of limited government" lost the battle, but may have won / be winning the war. Examples of the former include Larry Solum @ LTB and Tom Scocca @ Slate; examples of the latter include Ilya Somin @ SCOTUSblog and (I'm sure) lots of others I haven't read. Whether this narrative is coming from folks trying to put a positive spin on what to them is a disappointing result or otherwise, I suspect it's going to be one of the common themes in the more studied post-morterms, and at least initially, I'm not convinced:

1. NFIB Isn't Another Marbury. Leaving aside the fact that the case name just doesn't roll off the tongue the same way, I have a hard time seeing much in the Chief's opinion that resembles Marbury at anything other than a hopelessly abstract and superficial level. For starters, Chief Justice Marshall's masterstroke in Marbury was expanding the Court's literal power in a manner that didn't require him to rule against President Jefferson--to the contrary, striking down section 13 of the Judiciary Act of 1789 deprived him of his authority to rule for the side with which his politics were sympathetic. The Federalists didn't win in the long-term; the Court did. Nothing in NFIB v. Sebelius, in contrast, expands the Court's jurisdiction beyond where it stood yesterday, or its unquestioned power to invalidate state and federal laws that are inconsistent with the Constitution (see, e.g., the joint dissent).  Although the Chief's opinion surely has institutional value (insofar as, in the eyes of many, it maintained the Court's legitimacy), I dare say that nothing is true about the Court as an institution tomorrow that wasn't true yesterday. And whether NFIB ends up as more of a boon to Democrats or Republicans, it's hard to see how the Court wins in the long-term from today's decision in any way other than because it didn't lose--avoiding the enmity and bitterness of a jaded and disappointed progressive community. 

Some might respond that the analogy to Marbury isn't about institutional power, but rather doctrinal misdirection: Hiding important substantive law behind a decision that seems to come out the other way, so that the Court achieves substantive results in the long-term that institutional concerns prevented it from claiming more immediately. Thus, Scocca, suggests, "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory." Even if this were a fair reading of Marbury (does anyone besides Federal Courts nerds actually care in the long term about Congress's power over the Supreme Court's original jurisdiction), it assumes facts not in evidence about NFIB, specifically that the Chief's Commerce Clause and Spending Clause analyses will have significant weight going forward.  That brings me to...

2. It's Spending, Not Commerce, That's Going To Matter. The assumption behind this entire narrative is that Chief Justice Roberts' majority opinion materially advances the ball with regard to constitutional limits on the Commerce and Clause, and is therefore a strategic, if not tactical, victory for those opposed to expansive views of the federal government's regulatory powers. Although I think there's a lot to this claim with respect to the Spending Clause, I'm far less convinced re: commerce. After all, (1) there's a non-frivolous argument that the Commerce Clause analysis is dicta (I just don't buy the necessary-to-the-result analysis); and (2) even if it is a holding, I can't think of a single other statute (or widely discussed proposal) that is vulnerable to the narrowly circumscribed Commerce Clause problems the Chief identifies in his opinion. Corey Yung is unquestionably right that there are lots of quiet penalties for inactivity in federal law. But few that look just like this--that was the whole point, remember? So might today's decision affect how Congress legislates going forward? Sure. The next time Congress wants to take an unprecedented step to require Americans to participate in a market in which there is a plausible claim they would otherwise stay out of, it'll matter whether the Chief's analysis was dicta or a holding. I, for one, will not be holding my breath in anticipation.

As for the Spending Clause, I really do think that, given what the Court (including Justices Breyer and Kagan) did here, today's result is not as sweeping a win for the Obama Administration as many had hoped for / reported. Indeed, I basically agree entirely with what Sam Bagenstos had to say re: how this might matter going forward. Without question, the substantive constraints on Spending Clause statutes will affect future legislation and litigation (albeit probably very little, ironically, with regard to the Medicaid expansion itself, thanks to both (1) the five-Justice Booker-remedy move; and (2) the terms of the ACA deal, which will likely prove too good to pass up even as a pure bribe). And even if the effects are overstated, it's not every day that the Supreme Court recognizes a limit on a particular source of Congress's powers for the first time in 75 years. But, and again unlike Marbury, there was no misdirection here. This was just a different holding on an analytically different issue that just happened to arise in the same case. Had the issues been resolved in separate opinions, or wholly separate cases, we wouldn't even think of the Marbury analogy. And as big a deal as the Spending Clause holding is, as mixed a bag as it makes what happened today, and as important as it may be in the future, none of those does a Marbury make. Sometimes a pig is just a pig.

Heart of Atlanta, Roberts style

Chief Justice Roberts wrote only for himself on the Commerce Clause and Necessary and Proper issues, explaining why the law was invalid on those grounds before turning to taxing issue and ultimately upholding the mandate. The key to Roberts's analysis is that the mandate "reads more naturally as a command to buy insurance than as a tax." It therefore had to first be analyzed (and rejected) as a Commerce enactment. It only could be analyzed as a tax through a saving construction, which only is imposed if the law would otherwise be unconstitutional. Only after that saving construction, the Court then could perform the Taxing Clause analysis.

But because constitutional invalidity must come before the saving construction which must come before the Taxing analysis, making the first step necessary to the judgment. And thus the confusion over whether this is dicta and whether there is a five-vote majority for the Commerce analysis.

In Heart of Atlanta Motel v. United States, SCOTUS upheld the public accommodations provisions in Title II of the Civil Rights Act of 1964. Congress had pointed to and discussed two power sources during the legislative debates--Commerce and § 5 of the Fourteenth Amendment. But the latter would have required reconsideration of The Civil Rights Cases, which held that Congress could not regulate non-state conduct through § 5. The Court upheld Title II on Commerce grounds, without discussing (or feeling it necessary to discuss) § 5.

This was despite the following: (379 U.S. at 257)

Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.

But under the approach Chief Justice Roberts took today, the Heart of Atlanta analysis arguably would have had to go as follows (with apologies to NFIB, slip op. at 44):

[Title II is concerned with a moral and social wrong.] The statute reads more naturally as [a way to ensure the Equal Protection of Laws] than as a [regulation of commerce among the several states] and I would uphold it as a way to ensure Equal Protection if the Constitutional allowed it. It is only because [§ 5 of the Fourteenth Amendment] does not authorize such a [law] that it is necessary to reach the [Commerce] power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that [Title II] can be interpreted as a regulation of [commerce]. Without deciding the [§ 5] question, I would find no basis to adopt such a saving construction.

Now, perhaps that would not have been a bad thing, as it would have forced a § 5 analysis and we might have gotten a very different analysis and conclusion than we got 25 years later in United States v. Morrison.

Still, Congress often legislates pursuant to multiple power sources or pursuant to a power source and in light of an outside limitation on power. Are there other instances of the Court insisting that a law must be "read more naturally" as derived from one power than another, such that that power had to be analyzed first and becomes essential to the judgment, even if the ultimate conclusion is to uphold the statute on that other ground? It seems to me that the ordinary (and better) process is to read the statute and accept Congress' asserted power source(s) and evaluate the law under all that may apply. And it ordinarily is (and should be) enough to find one power source on which to uphold it; its invalidity under any other source should not be necessary or relevant to the judgment.

A pro-federalism spin on NFIB's reading of the taxing power

As I just noted, I regard the Court's recent ACA decision as a major defeat for constitutional federalism, because it revives attention to Congress' long-dormant power to impose taxes for regulatory purposes. That power to impose regulatory taxes lapsed into desuetude after the Court expanded the Congress' commerce power in the wake of the New Deal, but, once upon a time, it was the basis for major federal "morality" regulations (against gambling and drugs) during the 1920s through the 1940s. Reviving such a massive power while placing a practically irrelevant limit on the commerce power is not, as Randy Barnett claims, a "weird victory for federalism": It is, to the contrary, a weird victory for nationalism in which, having gagged on the gnat of the commerce power, the Court blithely swallows the camel of regulatory taxes. The taxing power, after all, is not even subject to the minimal limits of Lopez and Morrison, which curtail "non-economic" federal laws directed at (for instance) marriage, education, family law, and other "Culture War" matters. A broad taxing power is, in short, so much worse than a commerce power to impose mandates on private persons that granting the first to gain limits on the second is truly a pyrrhic victory for federalism.

Chief Justice Roberts dropped a few hints in the majority opinion about how the taxing power could be limited in future cases, but some of these limits seem formalistic and silly. The fact that this "exaction" (as Roberts diplomatically calls the mandate) is collected by the IRS rather than, say, HHS seems like the sort of formalism that has given federalism doctrine a bad name.

But Roberts does provides federalism fans with a few small and more substantial consolation prizes. He emphasizes, for instance, that the ACA bars any exaction higher than the average insurance premium that an individual would otherwise have to pay to a qualified insurer (page 35). Footnote 8 at page 36 of the slip opinion also indicates that some such ceiling might be a necessary and not merely sufficient condition for a regulatory tax to be constitutional. Finally, Roberts offers a broad hint that, if Congress were to impose a tax burden so large that the effects were mostly excess burden rather than generation of revenue, then such a tax would not count as a "tax" under Article I, because it would be too "punitive" (pages 42-43 of the slip opinion).

This sort of dicta is encouraging, and, if one were, like myself, both in favor of stronger protections for state power and also inclined to look for silver linings, one might plausibly "spin" this language into a sort of "nexus" text for regulatory taxes: viz., The tax burden incident on some sort of action or inaction must be rationally proportional to the costs of such conduct, or else the tax will be treated as a de facto penalty enforcing a regulation and, therefore, a forbidden end run around the limits of Article I. So read, the language is actually an improvement on the taxing power as described in Kahriger.

Or, at least, that's what this pro-federalism guy says to himself to console himself in the wake of Randy's alleged "victory" for federalism.

Stolen Valor Act: Dumb but not sufficiently illiberal?

Most of y'all are probably browsing the 190 page monster of the Healthcare Cases, but I'm here to interrupt with some news about Alvarez, the stolen valor case. It's both a bit snoozy and breezy  -- except for the dissent, where Alito blithely smacks down an academic amicus brief from UCLA's Jonathan Varet. Aside from that brief episode of fireworks, and the somewhat surprising claim made by Alito that we have witnessed an "epidemic" of people falsely claiming military honors, the various opinions are, at first glance, well, bland. The majority, by Kennedy, is not especially persuasive at distinguishing Section 1001 federal crimes from what's at issue here. Neither statute requires any kind of harm, real or threatened. So if you want to throw out one, it seems you have to throw out the other. That seems kind of drastic; the government should probably be able to save itself the trouble of dishonest interlocutors. I'm not saying I would pass both those criminal laws, as drafted, myself. To my mind, the stolen valor statute is a dumb use of the criminal sanction, and legislators should have sought less drastic measures to advance their goals besides plopping more drivel in the Title 18 bucket. But even though it's dumb, it's permissibly dumb.

I don't find myself moved by the slippery slope problems the challengers to the statute make with respect to the kind of breathing room that true speech needs in terms of having some false speech protected. The fact that we all err on the road to truth in the market of ideas is largely irrelevant here because of the mens rea requirements. [Update: I should have thought more of the relevance of the satire issue, which I think is knowingly false speech that's still critical for long term health of democracy; I flag but ultimately disregard that as a useful but not on these facts applicable concern.] So, put aside the truthiness interest, and that leaves an autonomy interest to consider, presumably the sort that Varat was getting at in his amicus brief that Alito batted down. I get that. That interest seems worthwhile and important up to a point. But, as I tried to argue in Retributive Justice and the Demands of Democratic Citizenship, the autonomy interest with respect to criminal legislation has at least two dimensions: the negative one (the right to be let alone by the government) and the positive one (the right to engage in democratic self-government). 

To my mind, this statute was not so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books. I suppose such sheepish support probably puts me with the dissenting 3 (certainly not my favorite company: CT, AS, and SA).  Not that anyone's asking but were I in a position to have upheld the statute, it would have been with much less rhetorical bombast. More references to Holmes and emphasis on the fragile asininity of democracy and less patriotism. But maybe I'm wrong. I'll need to think it over some more.

Commerce clause majority?

Ethan asks whether there is a binding holding on the Commerce Clause, combining  the Chief with the four dissenters. A lot depends on whether the Chief's discussion is necessary and I am not sure I buy his explanation; he seems to be suggesting that they construed the statute to have it be a tax and then upheld it, but doing this first required consideration of the unconstrued text under the Commerce Clause. Mark Graber argued on a listserv that this is similar to Taney's move in Dred Scot, where he first held that there was no jurisdiction because Scot was not a citizen of the United States, then tried to fold the discussion of the Missouri Compromise into that jurisdictional discussion.

Going forward, this is calling to mind some debates over Congress' power to regulate private conduct under § 5 of the Fourteenth Amendment. In United States Guest in 1966, five justices held that a federal prosecution of private individuals for conspiracy to deprive persons of use of public accommodations could go forward, because there were sufficient allegations of public involvement in the conspiracy. Three justices from that majority--Clark, Black, and Fortas-- wrote a concurrence stating "There now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies--with or without state action--that interfere with Fourteenth Amendment rights." Justice Brennan, joined by Chief Justice Warren and Justice Douglas, wrote a concurring opinion stating that the prosecution was valid because Congress has the power to reach all conspiracies that interfere with constitutional rights, with or without state action.

So advocates tried to use Guest to argue that there were six justices for a binding rule that Congress can regulate private action through § 5. But the Court rejected this in United States v. Morrison (the Violence Against Women Act case), stating that "three reasoned justices combining with three unreasoned justices  is "simply not the way reasoned constitutional adjudication proceeds." Now, I imagine (I have to read the decision) that Roberts did engage in serious analysis on the Commerce issue, so this is not exactly like Guest. Still, the Court typically does not count noses outside of opinions to establish majorities.

In any event, as Tom Goldstein points out, the Chief relied on the activity/inactivity distinction, which likely will not affect many statutes going forward.

A Guess on the CNN/FoxNews Snafu

Both CNN and FoxNews reported initially (as did Diane Rehm) that the mandate had been struck down.  Was that based on reading the Roberts opinion, or was it based on The Chief Justice's' way of announcing the opinion in court?  Did he start with the Commerce Clause, and then transition with a big "But . . . "?  Just curious if anyone was in attendance and could speak to how the moment felt.

More thoughts of others

Rick Hasen here. Also, SCOTUSBlog is hosting a day-long blog symposium; it is still in live-blog mode, but they are providing links.

ACA Constitutional

The Chief joins Ginsburg, Breyer, Sotomayor, and Kagan.

Opinion here (warning: it's 193 pages)

Stolen Valor Act unconstitutional

Like Paul, I have been waiting for Alvarez as much as anything this term. The Court affirmed the Ninth Circuit and held the statute unconstitutional. Justice Kennedy wrote for a plurality (himself, the Chief, Giinsburg, Sotomayor), with Breyer and Kagan concurring in the judgment to suggest that the statute is unconstitutional as is, but could be redrafted. Alito (no suprise), Scalia, and Thomas dissent.

This explains why the case took so long. I am particularly intrigued by Kagan's vote; I had seen her staking out a highly speech-protective position, so I am curious that she did not go the whole way on this one. And the Chief is turning out to be an (unexpectedly?) strong proponent of a libertarian First Amendment.

Opinion here.

The Five Stages of Constitutional Interpretation

It seems to me that the liberal blawgosphere has followed the Kubler-Ross model in dealing with the possibility of losing the health-care cases: denial, anger, bargaining, depression, and acceptance.  If that's the case, is Larry Tribe still in Stage 1?

UPDATE:  Paul Horwitz said it first and best -- he seems to have achieved Stage 5 in March.

Overcoming Iqbal

In the one article I've written about Twiqbal, I examined the potential impact on constitutional and civil rights litigation, with a particular focus on a case out of the Ninth Circuit called Moss v. Secret Service, a § 1983 and Bivens action against Secret Service agents and local police who allegedly moved a group of protesters to an unfavorable position away from a restaurant where President Bush was eating pursuant to White House and Secret Service polic, while leaving a group of Bush supporters in place.

In the article, I criticized a 2009 panel decision dismissing the claim on Iqbal grounds, dismissing several allegations as conclusory (notably allegations of motive and policy) and taking a very crabbed reading of the remaining factual allegations. I argued that this demonstrated the problems with Iqbal, because it was not clear what more the plaintiffs could plead and that the plaintiffs likely would lose without getting past pleading, although the plaintiffs had been granted leave to replead. So much for my predictive power; two months ago, a Ninth Circuit panel held that the Second Amended Complaint was pled sufficiently and remanded the case to the district court to allow it to move forward.

What changed? For one thing, the plaintiffs supported their allegations of a policy with detailed allegations, based on published reports, of past incidents of similar treatment of anti-Bush protesters. They also included a copy of the Presidential Advance Manual (presumably obtained through early discovery), which suggested a White House policy of working with the Secret Service to move protesters. For another, the new complaint clarified that the protesters were moved farther from the inn than the pro-Bush demonstrators. For another, the court was simply more willing to adopt plaintiff-friendly inferences. For example, the first court held that moving the protesters one block away did not plausibly lead to the inference of viewpoint discrimination, because the plaintiffs still could be heard; if the goal was to silence them, they would have been moved even further away. By contrast, the second court concluded that it is a plausible inference that they were moved to somplace from which their speech would be less visible or intelligible.

So what can we conclude about Iqbal from the developments in this case? On the good side, it shows that it is possible for civil rights plaintiffs, given another opportunity, to plead sufficient non-conclusory facts and to survive 12(b)(6). But I want to suggest that, despite the result in this case, Moss better demonstrates the problems with this pleading regime.

First, it shows that a plaintiff's ability to plead non-conclusory facts may depend entirely on circumstance. The plaintiffs were able to plead in the amended pleading because they had public reports of past similar incidents, which supported the inference of a policy. But suppose the prior incidents had not been publicized. Or suppose this case had been the first instance in which that policy had been implemented.

Second, it shows the inherent subjectivity in the analysis. The second panel found several inferences to be plausible that the first panel had not found plausible; these include inferences about the pretextual nature of the agents' stated reasons for moving the protesters and about the significance of the protesters being less visible or intelligible from their new location. I have no great problem with subjectivity generally, since law is rarely, if ever, objective. Having looked at both pleadings and both decisions in Moss, it is hard to tell the difference between them. The only difference between the pleadings is the level of detail as to the policy--but Iqbal is not supposed to be about how much detail, but about the "so what" of the facts included.

Third, it shows that this is not worth the candle. This action was originally filed in 2006; six years later, we are just now finishing pleading and going back to the district court for serious discovery. But everyone has known all along what this case was about, what inferences that the plaintiffs would need the factfinder to draw, and what facts would come out in discovery to indicate viewpoint discriminatory intent. So why spend so much time on the complaint? And a doctrine, such as Iqbal, that forces us to do so is problematic.

The Math of 5-4 Summary Reversals (or, What I Don't Get About Bullock)

I'm late to the party re: the Supreme Court's 5-4 summary reversal yesterday in the "Citizens United sequel," American Tradition Partnership, Inc. v. Bullock. More to the point, I'm not an expert on campaign finance law specifically, or the First Amendment generally, so I'm not sure I have much to add to the various substantive reactions percolating around / pervading the blogosphere. Instead, the fed courts nerd in me gravitated toward the oddity of the disposition--a 5-4 per curiam summary reversal. While there have cerainly been 5-4 per curiams before, and 5-4 decisions without argument (see Garcia v. Texas for an example of both), off the top of my head, I couldn't think of a single 5-4 summary reversal--and my copy of Stern & Gressman is 4000 miles (and one very big ocean) away.

The reason why 5-4 summary reversals are so unusual is actually somewhat straightforward: As we know, it only takes four votes to grant a petition for certiorari, whereas it (usually) takes five votes for dispositions on the merits--including summary reversals. Whether because it would undermine the four-to-grant rule or for some other reason, the Court by tradition has historically given precedence to four votes for plenary review over five votes for a summary reversal. Thus, a 5-4 summary reversal could only occur if both (1) exactly four Justices object to a summary reversal; and (2) not all of those four want plenary review. [Note that this also explains why the old belief in a "rule of six" for summary reversals probably was never true--five will suffice so long as the other four don't all prefer plenary review.] And needless to say, although either scenario is relatively common, their confluence is not, for reasons I elaborate upon below the fold...  

One possibile situation in which such an outcome could occur is where the four dissenters would have summarily affirmed the decision below--and are therefore dissenting on the merits, rather than on the summary disposition (an example of this appears to be the Court's last 5-4 summary reversal: Riggan v. Virginia, 384 U.S. 152 (1968), which I found through this blog post). For obvious reasons, I have to think that this is a vanishingly small set of cases.

The second way such an outcome could arise is what happened in Bullock: where at least one of the four opponents of summary reversal votes to deny certiorari rather than to grant plenary review (in Bullock, all four of the "dissenters" so voted). In a typical error correction case, one could imagine this happening if some of the dissenting Justices just didn't think the decision below was worth the Court's time one way or the other. Indeed, examples abound of 6-3, 7-2, or 8-1 summary reversals where at least one Justice objected on such terms without expressing a view as to either the merits or the form of the disposition. Perhaps it's just a fluke that there aren't similar examples of such a split in a 5-4 summary reversal; perhaps it's a reflection of deeper institutional realities, since it would be odd if five Justices thought an error so egregious as to warrant a summary reversal and the other four thought the error utterly unworthy of correction.

But whatever else Bullock was, it wasn't a typical error correction case--as made abundantly clear by the Ginsburg/Breyer opinion respecting the stay. And that's where things get interesting...

Let's start with the obvious: I think Rick Hasen is exactly right to suggest that such a move by the lefties is actually a "relative victory" for campaign finance reformers, given the extent to which "[t]aking the case would have been an opportunity for the majority of Supreme Court justices to make things worse [from the reformers' perspective], such as by suggesting that limits on direct contributions to candidates are unconstitutional." I'd only add the stare decisis point: separate from what the Justices didn't have a chance to decide, even what they did decide, i.e., that Citizens United applies to state campaign finance laws, will not have the same value qua stare decisis going forward, since "[a] summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion." That won't matter in the short term, but it certainly could matter if the day comes when there are no longer five strong votes to defend Citizens United... 

To be sure, I don't think any of this analysis is particulary earth-shattering. Whatever one thinks about the merits of Justice Breyer's move, it's a relatively obvious one, at least once it became clear that there were five unshakeable votes to slap down the Montana Supreme Court. But if it really was that clear, then the less obvious, more interesting question becomes why the conservative Justices acquiesced, since nothing would have stopped any four of the five Justices in the majority from opting for plenary review instead of a summary disposition.

Opt in, opt out

The opt-in/opt-out question is an important, but infrequently discussed, aspect of First Amendment doctrine. Broadly speaking, how should the First Amendment handle people who want to take themselves out of the expressive marketplace? Two main groups may want to do this. One is unwilling speakers, those who do not want to speak or to support speech, exemplified by the objecting nonmember dues payers in Knox. A second group is unwilling listeners, those who do not want to listen or see someone else's expression.

As to listeners, the general rule has been opt-out. The burden is on the listener to avoid objectionable speech. This is reflected in the rule against hecklers' vetoes and the command of Cohen that those who want to avoid an objectionable message must "avert their eyes." It also explains Lamont v. Postmaster General, where the Court invalidated a postal regulation requiring the seizure of certain mail unless the recipient affirmatively requests that the mail be sent to him. The onus was on the unwilling recipient to block the mail, which also protects the willing listener from having to affirmatively declare to the government that he wants to receive communist propaganda. Finally, it also explains why the FCC imposed a do-not-call list to limit telemarketing, putting the burden on the callee to stop the calls. Protecting unwilling listeners from offense or annoyance (as opposed to genuine harm) will rarely be a sufficient government interest to uphold a restriction on speech; hence the line between a cross burned as a threat and one burned as part of a broader public statement.

There are examples in the other direction. Most notable are abortion-facility-protest cases, under which protesters can be prohibited from approaching or communicating with patients unless invited. But this typically involves face-to-face speech, which receives less protection. There is the so-called captive-audience doctrine, but again relatively limited. And the Court rejected opt-out in favor of opt-in as to public libraries' use of internet filters.

So the jurisprudential trend places the onus on the unwilling listener to avoid unwanted speech in favor of allowing the willing speaker greater freedom. And the opt-out default generally makes sense here. A willing speaker has a greater right than an unwilling listener, at least where the speaker is speaking to the public and not to the listener alone. There is no way that someone addressing a mass audience can get the permission of the entire audience, so administrative simplicity favors putting the burden there. This also is consistent with the First Amendment's preference for "more speech," which we get both by reducing the cost and burden on a speaker to produce and disseminate his speech and by ensuring a wider possible audience.

So what about unwilling speakers/funders, as in Knox? Here, we have a willing speaker (the union) pitted against unwilling speakers (nonmember dues payers) who have a right not to speak, including a right not to have to fund someone else's speech. If an opt-out is enough to protect an unwilling listener, should it be sufficient to protect an unwilling speaker?

The majority in Knox viewed the unwilling speaker's rights as largely trumping the willing speaker's, so it felt comfortable placing the entire burden on the latter. The likely reduction in "more speech" that comes with an opt-in was justified by the need to protect the unwilling speaker from ever having his money used for objectionable political purposes, even for a brief time and even if he ultimately will get it back. This is a very broad understanding of compelled speech; even the momentary use of one's money for objectionable speech violates the First Amendment. Moreover,  the Court was implicitly saying that the administrative burden on the willing speaker is not so much greater with an opt-in than an opt-out; the union is obligated to provide (and update) notice in either event, so the nature of the notice was irrelevant.

Is this the proper balance? If an opt-out is appropriate as to unwilling listeners, there may be a benefit to using the same standard for all unwilling speech actors, so we have some consistency. Moreover, I think the Court downplayed too much the loss of speech and the burden on the union from opt-in, while overplaying the burden on the objectng funder from a temporary payment. The Court recognized the union's rights (cleverly citing Citizens United for the proposition), but then seemed to minimize the effects of an opt-in command on those rights. The goal of "more speech" seemed to fall by the wayside.

SCOTUS punts on broadcast indecency

The Supreme Court unanimously held that the FCC could not enforce its new "fleeting expletives" policy as to Cher and Nichole Ritchie at the Billboard Music Awards and a butt shot on NYPD Blue, but not on First Amendment grounds. It held that the FCC had not given the networks sufficient notice of the new policy or that these broadcasts were unlawful, making it unconstitutioanlly vague as applied. The Court explicitly did not consider the First Amendment or the continued vitality of Pacifica, but told the FCC and the lower courts that they are free to make and remake policies and consider their constitutional validity.

Justice Ginsburg concurred only in the judgment to argue that Pacifica should be reconsidered. Interestingly, she cited to Justice Thomas' concurring opinion in the prior Fox case suggesting the same thing. But Thomas stuck with the majority opinion.

Quick Update: Interesting timing, because just Tuesday night, ABC cameras caught Dwaye Wade repeatedly using "mother-fucking" or "mother-fucker" during the post-game celebration following the Miami Heat's win in Game 4. Does ABC have notice of the policy? Or were things sufficiently in limbo until 10:30 this morning that the FCC only can enforce the policy against broadcasts from now forward?

Less Quick Update # 2: Eugene Volokh floats a theory I thought about this morning: There were four votes to overturn Pacifica, but with Justice Sotomayor recused (she was on the Second Circuit when this entire dispute first began), there was no fifth vote. Rather than affirming by a split 4-4 Court or reversing without a majority opinion or rationale, the Court sought the narrower grounds on which almost everyone would agree. Gene has Kennedy, Thomas, Ginsburg, and Kagan as wanting to overturn, but none of the Chief, Scalia, Breyer, and Alito willing to go along. I had Thomas and Breyer flipped, but on thinking on it, if this is what happened, Gene has the line-up right. I had forgotten that Thomas has shown himself to be more speech-protective in a lot of things, including indecency, while Breyer has shown a greater willingness to uphold agency regs that may impinge on speech.

Corporations = Skokie Nazis?

No, the title is not an attempt to violate Godwin's Law.

Back in March, the ACLU issued a statement defending Citizens United and opposing efforts to amend the Constitution to overturn that decision. Although old, that statement is getting renewed attention with the introduction this week of a constitutional amendment (proposed by California Democrat Adam Schiff) overturning the decision and seeking to carve campaign finance out of the First Amendment. This is only the latest proposal.

The ACLU statement has lead to surprise in some circles (including on a list serv for con law types) that a group that "leans strongly left" such as the ACLU would oppose the amendment, the suggestion being that any such amendment must be a bad idea if even the crazy lefties at the ACLU are against it. We can debate whether the ACLU leans strongly left as an overall matter. But the suggestion that it only protects left-leaning viewpoints in First Amendment disputes is, in overwhelming part, wrong. Particularly on campaign finance, where the ACLU has filed amicus briefs in opposition to the regulations in most of the recent cases.

The ACLU's position triggered another thought: Where does its membership generally stand on Citizens United and how is the organization's position (on the decision and on any amendment) playing? The ACLU's famous defense of the Skokie Nazis in the late '70s is looked on as a high-water mark of free-speech principle-- defending deplorable speech you absolutely hate. But at the time, it resulted in canceled memberships and a scramble by the national and local chapters to explain the position and calm angry members. Might the defense of CU (and opposition to efforts to undo it) trigger similar outrage among its members? Or will this fly more under the radar with members, since the ACLU is not at the public forefront of either the CU litigation or the opposition to any amendment?

Fixing the Constitution In Some Small Ways

Thanks to Howard for the tip-off below about the piece in Slate I did with Ethan on fixing the double jeopardy clause. I also did a similar piece today for the same forum with Eric Miller (SLU) about the bail clause. I continue to be lucky to have such fine co-authors.

Re: double jeopardy, I should add one point that we didn't much discuss in our short suggestion piece. Some might worry that allowing one juror to block a conviction would create too much incentive for corruption or too much likelihood for ideological peculiarity to drive the result. On the first point, we noted that if there is real evidence of corruption, then that would be sufficient to permit re-prosecution.  On the second point, this would be my response. In a world where double jeopardy protection meant something, I'd be worried about outliers too, and I'm guessing Ethan and I would have been open to allowing re-prosecution if there was a strong super-majority to convict. However, my sense is that, in light of the dual sovereign doctrine, as well as the very permissive Blockburger test, which most states have in determining whether a defendant can be tried based on crimes occuring in the same event or transaction, most states will be able to find a way to get a second bite at the apple if they really need it. The sad truth is, current federal constitutional double jeopardy protection is, as we said, anemic and will only be somewhat improved by the adoption of the rule we propose. 

Prawfs Constitutional Convention

Ethan and Dan are the latest contributors to Slate's How Can We Fix the Constitution discussion, proposing a change to the Fifth Amendment that would apply Double Jeopardy when a jury is unable to reach a verdict.

Ideological judges, evolving judges

A colleague offered the following, as a possible explanation for the increased public perception of a divided partisan Supreme Court: We have no "cross-over" justices. The "conservative" justices all were appointed by Republicans, the "liberal" justices all were appointed by Democrats (my colleague rejects these labels and so do I, thus the danger quotes, but they are the labels everyone is using). We no longer have a Justice Stevens or Souter or, from the other side, a Justice White, who regularly vote contrary to the constitutional and political viewpoints associated with the party that appointed them.. So the Court looks like Congress and the public begins to view it that way.

Let me suggest a corollary idea: Justices are not "evolving" anymore. The "conservative" justices generally remain in step with the prevailing political leanings, interests, and issues of the appointing party, even 20-25 years later. Same with the "liberal" justices.

One explanation is that the core constitutional commitments associated with each party have not evolved or have remained consistent over time. In other words, we are not seeing people such as Justice Frankfurter or, to a lesser extent, Justice Black. Both were Democratic appointees appointed with the hope that they would uphold congressional power to enact the New Deal and they followed the Democratic line in doing so. But they then fairly quickly found themselves out of party step when the core issues about which Democrats cared became individual liberties, substantive due process and unenumeratred rights such as privacy and reproductive freedom, and vigorous judicial policing of individual liberties.

Instead, current constitutional battle lines remain consistently drawn across issues and the Justices are mostly in step across issues and provisions. Thus, while Frankfurter had Democrat-friendly views on congressional power, he had less-Democrat-friendly views on the new issues of civil liberties and judicial protection of civil liberties. So he was voting contrary to what you would expect from a Democratic appointee by the 1950s. By contrast, Justice Scalia's views on congressional power, equal protection, and reproductive freedom  match up with the prevailing Republican view, just as  Justice Ginsburg's views on all three match up with the prevailing Democratic view.

Perhaps this is an inevitable result of the polarization of the parties. We get far greater consistency in the overall constitutional vision of each party, such that judicial appointees (who are far better vetted than they used to be) carry that vision across all the issues. Roosevelt appointed Frankfurter in 1939 with an eye on upholding the New Deal; he was not thinking about these other constitutional questions or anticipating that they might become important. On the other hand, Reagan appointed Scalia or Obama appointed Kagan with the expectation that each would be a consistent vote for their constitutional visions across the board, because the respective visions are so consistent down the line.