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Thursday, April 26, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans. The Court finally began drawing down its backlog with 5 opinions last week, all but one with bare 5-Justice majorities, including the “partial-birth abortion” battle royale. Please accept this extremely belated (and lengthy) dispatch with my apologies; I’ve tried to make it worth your while. To paraphrase our esteemed Attorney General, “I don’t recall what I was doing last week when I was supposed to be writing SCt Today, but I can assure you a process was in place and the right decision was made.”

Gonzales v. Carhart, 05-380/ Gonzales v. Planned Parenthood, 05-1382

As tout le monde knows by now, the Court upheld the Partial Birth Abortion Ban Act against a facial challenge. The decision sparked an immediate controversy, but it remained far more popular than its namesake Alberto Gonzales, since it was only condemned by half the country. But was it a narrow or broad decision, and what does it tell us about the Roberts Court’s likely approach to abortion? What does it mean for stare decisis? (Latin for “stand by decisions I agree with”). And what does it all mean for Rosie’s tenure on The View? Read on for a fair and balanced assessment.

AMK (+ the Gang of Four) spent 7 of the opening pages of his majority opinion graphically describing the various late-term abortion procedures, including the banned procedure—intact dilation and extraction—and the main alternative procedure—regular dilation and extraction. Intact D&E is extremely rare; regular D&E is used in most late-term abortions. Readers who need to test their ability to wince may consult the opinion directly.

AMK began his analysis by “assuming for purposes of this decision” certain principles from Casey v. Planned Parenthood (1992).  Thus, the Court made perfectly clear that some members of the majority do not accept Casey as binding precedent. To no one’s great surprise, this at least includes AS & CT, if not JGR and SAA (more below). The Court first rejected a vagueness and overbreadth challenge to the statute. This was the least controversial part of the opinion (apparently not contested by the dissenters), but was essential to distinguishing Stenberg v. Carhart (2000), which held that Nebraska’s partial-birth ban was so loosely worded as to cover regular D&E and thereby place an undue burden on abortion. By contrast, the Court found the federal Act to be clearly restricted to intact D&E because it criminalizes only the intentional delivery of an intact, living fetus to a defined point, followed by an additional, intentional act that kills the fetus.

AMK turned next to the “money” issue: whether, under Casey, the Act places an undue burden on women seeking previability abortions. Kennedy began by reaffirming that Casey recognizes the government’s important interest in “showing its profound respect for the life within the woman.” In a key passage summarizing the Casey standard as he sees it, AMK wrote: “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory authority to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” The Act furthers those interests in various ways, he explained.

First, echoing AMK’s impassioned Stenberg dissent, the majority wrote that the Act reflects the State’s legitimate interest in drawing a bright line between abortion and infanticide. Second, in Kennedy-ese, the Act recognizes that “respect for human life finds its ultimate expression in the bond of love the mother has for her child.” Attempting to translate into English, Kennedy wrote that some women may “come to regret their choice to abort the infant life they once created and sustained.” Here, the Court cited an amicus brief by Sandra Cano (the plaintiff in Roe’s companion case, Doe v. Bolton).  In one of the opinion’s most striking passages, AMK further posited that some women might have a partial-birth abortion without knowing how one is performed, resulting in a woman’s even greater regret that “she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child fast assuming the human form.” By bringing to light the method of partial-birth abortion, the Act may result in greater information for pregnant women, and ultimately, fewer abortions. The Court thus concluded that the legitimate purpose of the Act is promoting respect for fetal life, not placing a substantial obstacle in the way of women seeking an abortion. Normally, when Kennedy’s “sweet mystery of life” rhetoric makes an appearance, it is in the service of causes establishment media types approve, and accordingly, they are impelled to purr about its wisdom; but commentators (Dahlia Lithwick and the fairly staid Cokie Roberts, among others) have singled out this passage to condemn the Sacramento Justice for patronizing women.

AMK next explained that “under precedents we here assume to be controlling,” the Act would be unconstitutional if it subjects women to significant medical risks. The Court declined to rely on Congress’s finding that intact D&E is never medically necessary, reasoning that the Court has an independent duty to assess constitutionally significant facts. Assessing the factual record before the district courts and Congress, AMK concluded that there was significant medical disagreement over whether intact D&E is ever the safest abortion option available. Stenberg had held that the existence of this medical uncertainty doomed the Nebraska ban because it, like the federal Act, lacked an exception to protect the health of the mother. But AMK held the opposite, citing numerous pre-Stenberg precedents, which held that legislatures have “wide discretion” to act in areas of medical and scientific uncertainty. On this point, then, the Court appeared to overrule Stenberg, albeit without saying so: Stenberg’s “zero tolerance policy” disrespects Congress’s authority to regulate the medical profession, which includes the authority to balance medical risks, so long as the legislation is “rational and in pursuit of legitimate ends.” The Court further reasoned that the availability of usually safe alternatives, such as regular D&E, shows that the Act does not impose an undue burden on the abortion right.

Finally, the Court held that a facial challenge to the statute should not have been allowed at all. The lenient standard for First Amendment facial challenges does not apply in the abortion context. AMK declined to decide, however, whether a facial-challenge plaintiff must show that an Act is unconstitutional in every application (the Salerno standard) or only in a large fraction of relevant cases, as Casey suggested. Either way, the plaintiffs failed to show that the Act poses an undue burden in a large fraction of relevant cases, for the reasons explained earlier. AMK reasoned that the “relevant cases” include all partial-birth abortions, not only those done for health reasons. This, too, rejected Stenberg’s view that “relevant cases” included only health-justified abortions, which had made it much easier to demonstrate that the lack of a health exception posed an undue burden. In closing, AMK left the door open to an as-applied challenge to the Act, if a party can show that “in discrete and well-defined instances a particular condition has or is likely to occur” in which intact D&E must be used to preserve a woman’s health.

Justice Thomas briefly concurred, joined by AS, “to reiterate [his] view that the Court’s abortion jurisprudence has no basis in the Constitution.” He also noted that the Act’s validity under the Commerce Clause was not before the Court. JGR and SAA did not join CT’s concurrence, so we still don’t know their views on the validity of Roe and Casey, and thus the sincerity of their confirmation-hearing statements to Snarlin’ Arlen about super-double-dog-duper precedents. Given that the opinion merely “assumed” the application of Casey, JGR’s and SAA’s joinder of the majority (but not the concurrence) does not indicate that they support Casey. It more likely means that they did not see any need to show their cards yet, nor did they wish to leave AMK as the only Justice supporting his opinion as the best explanation for the Court’s decision.

Ginsburg (+3) angrily dissented, with a venom usually reserved for a Scalian attack on a SOC opinion (e.g., majority is “irrational”; “I respectfully dissent”).  But first, RBG made a very interesting move: She asserted that the abortion right is not based on “some generalized notion of privacy,” but on “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship status.” RBG has long held this view that abortion rights are best supported by the Equal Protection clause rather than the penumbras and mysteries of life emanating from the Due Process clause, as divined by Roe and Casey. But this is the first time that 4 Justices have signed onto such a statement. If RBG gets one more ally on the Court, we can expect this view to become Court doctrine in short order.

Turning to the case at hand, RBG’s dissent is a catalog of ways she believes the majority “refused to take Casey and Stenberg seriously.” The Court upheld the Act “in undisguised conflict” with Stenberg’s requirement of a health exception and in the face of trial-court findings that most doctors consider intact D&E safest in certain circumstances. Nor does the Act further respect for fetal life because “it saves not a single fetus from destruction.” The Court really bases its decision on “moral concerns,” which is an insufficient basis for “overriding fundamental rights” under Casey and AMK’s opinion in Lawrence v. Texas. RBG harshly attacked the Court for invoking “an antiabortion shibboleth”—that women sometimes regret their abortions—as a ground for denying women the right to an intact D&E. “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited,” she inveighed.  Moreover, the Court showed its “hostility” to abortion by referring to fetuses as “unborn children” and ob-gyns as “abortion doctors” (without noting that they’d been upgraded from “abortionists” since AMK’s Stenberg dissent). And it ignored the importance of viability as a dividing line by blithely upholding the ban even in previability cases. Finally, RBG accused the Court of gutting plaintiffs’ traditional ability to bring facial challenges to abortion laws by changing the “large fraction” test as it was applied in Stenberg. The Court’s decision is the result of a “differently composed” Court rather than “the rule of law,” and is nothing more than “an effort to chip away at a right declared again and again by this Court.”

The bottom line here is that with SOC on the rubber-chicken circuit, Kennedy’s interpretation of Casey is now the law. While the technical legal result of this decision is relatively narrow—laws must still have a health exception except when there is medical uncertainty as to whether one is necessary—AMK’s rhetoric indicates that he would uphold far more abortion restrictions than SOC in the name of promoting respect for fetal life. The Court’s use of rational-basis language confirms this likelihood. Perhaps the most important direct legal result of the opinion is its restrictive view on facial challenges to abortion statutes. This eliminates the favored position previously given to abortion litigants vis a vis other constitutional plaintiffs. Moreover, AMK’s discussion of the importance of informing women about abortion virtually invites a raft of new, more restrictive informed-consent laws in state legislatures. The real mystery is what motivated Kennedy to rely on the theory that the State may protect women from having abortions they may later regret. That controversial idea has never apppeared in any majority or dissenting opinion of the Court. I wonder if this approach was suggested to AMK by the Chief. You may recall from the confirmation process that JGR’s wife is a member of Feminists for Life. FFL, like many pro-life groups today, emphasizes the argument that abortion harms women, as well as unborn children. It is anybody’s guess how the Court’s new majority will deploy this concept in the coming years, but like many ideas that appear in AMK majority opinions, it may be cited principally in . . . future opinions of Justice Kennedy.

Carhart was a divisive decision. As a unifying gesture, before we move on, let me say something we can all agree with: the rest of the week’s cases make the Federal Register look like beach reading.

Global Crossing Telecommunications, Inc. v. Metrophones Communications, Inc., 05-705

The Court finally decided the last case from its October sitting, handing the 9th Circuit its first affirmance of the Term (sorry, ’76 Bucs). Now that it’s out, the only question is: How did such a boring case take so long to decide?

If you took Mr. T’s advice and used a dial-around number to make a coinless, long-distance call on a payphone and, despite your commitment to live by all his teachings, deep down inside you felt guilty for ripping off the payphone operator, then you’ll like this decision. Justice Breyer wrote for a 7-2 majority. Section 201(b) of the 1934 Communications Act makes it unlawful to engage in “unjust or unreasonable” practices and gives the FCC authority to define those practices. Section 207 authorizes a federal right of action by any person damaged by a violation of § 201(b). The 1996 Telecom Act, § 276, ordered the FCC to figure out a plan for compensating payphone operators. FCC regulations then placed the onus on the long-distance provider to compensate the payphone operator (you’re off the hook!) with a set fee each time a customer makes a dial-around, long-distance call. In 2003, another FCC regulation declared it unreasonable under § 201(b) (and therefore unlawful) for the long-distance carrier to refuse to pay this compensation. The FCC believed a payphone operator could therefore bring a federal-court lawsuit under § 207 to recoup any unpaid fees.

The Court agreed, holding that § 207 permits a federal-court lawsuit to recover damages resulting from any practice that the FCC has validly declared unreasonable under § 201(b). In other words, “to violate a regulation that lawfully implements § 201(b)’s requirements is to violate the statute.” That distinguishes cases like Alexander v. Sandoval (2001) and Adams Fruit v. Barrett (1990), where an agency tried to create a private cause of action through regulations untethered to statutory authorization.  The Court then held that the FCC’s payphone regulation is a reasonable implementation of § 201(b) under the Chevron test because it fits within the statutory language banning a “practice . . . in connection with [furnishing a] communication service . . . that is . . . unreasonable.” Moreover, the regulated activity—dividing the cost of a long-distance call between the carrier and payphone operator—resembles the type of ratesetting regulations traditionally promulgated under the 1934 Act.  It doesn’t matter that the FCC simply declared it unreasonable to violate its earlier regulations, so long as that unreasonableness determination is a valid implementation of § 201(b).

Justice Scalia dissented. He would accept a private right of action under § 207 only if the violation was “unreasonable or unjust” in its own right—that is, apart from the fact that an FCC “substantive regulation” declared it to be so. That was not the case here because, in his view, it makes at least as much sense to charge the caller (not the long-distance carrier) for the cost of using the payphone.

CT also dissented, arguing that failure to compensate a payphone operator is not an “unreasonable practice” under § 201. To him, the broader statutory context shows that “practices” cover only what telecom firms do as providers of telecom services to their customers, not whether they compensate their suppliers.

Watters v. Wachovia Bank, 05-1342

Someday, advanced computer software will automatically delete any e-mail that mentions the federal Office of the Comptroller of the Currency (OCC). Until that happy day, every person must look deep into his conscience and decide whether to devote precious seconds of his existence to read about cases like Watters. The National Bank Act gives the OCC the primary authority to regulate national banks and preempt any conflicting state regulations. But does a state have authority to regulate a national bank’s state-licensed subsidiary? Michigan thought so and tried to impose registration and inspection requirements on Wachovia’s real-estate-lending subsidiary.

The Court, speaking through RBG (+AMK, DHS, SGB, SAA (CT recused)), found Michigan’s regulatory adventurism preempted by the National Bank Act. The Court held that the Act gives national banks the right to carry out the “business of banking” either directly or through an “operating subsidiary,” which has authority to do only what the bank could do directly. Longstanding OCC regulations supported this view. And the Act’s policy against duplicative regulation supports preempting state regulation of operating subsidiaries as well as parent banks. The Court declined to consider the deference due to an OCC regulation that expressly provides for preemption of conflicting state law because the regulation plainly reflects the text and policy of the Act. The Court’s decision should gladden the banking community, which greatly prefers the OCC’s bank-friendly regulators to pesky state overseers who try to restrict unsavory-sounding practices like “predatory lending.”

Justice Stevens (+JGR, AS), the Court’s newest member of the Federalist Society, defended the right of “a sovereign State” to regulate bank subsidiaries. JPS criticized the Court for relying primarily on agency regulations, thereby forsaking the presumption against preemption, which can only be overcome by the “manifest purpose of Congress” and which should be particularly strong in the traditionally state-occupied field of consumer protection. The Chief’s joinder in Stevens’s dissent recalls the Old Chief’s frequent votes in favor of state power to the detriment of economic efficiency. Justice Alito’s agreement with the majority may mark him as more of an economic nationalist (a la AMK) on such issues.

James v. United States, 05-9264

The most interesting thing about this case is the unusual voting lineup, which split Alito and Roberts, in the 5-4 majority, from Scalia and Thomas, dissenting. The newly constituted Court, it seems, has been less likely than the old Court to fall into a predictable 5-4 voting pattern across a broad range of cases.

SAA (+JGR, AMK, DHS, SGB) wrote the opinion, holding that attempted burglary in Florida is a “violent felony” under the federal Armed Career Criminal Act. The ACCA provides a mandatory 15-year sentence for a federal felon-in-possession conviction if the defendant has three prior “violent felony” convictions. The question was whether attempted burglary falls within ACCA’s definition covering crimes that are “burglary, arson, extortion, involve use of explosives, or otherwise involve conduct that presents a serious potential risk of physical injury to another.” Attempted burglary is not “burglary” because that refers only to completed burglaries. The Court next employed the “categorical approach” first stated in Taylor v. U.S. (1990), asking whether the elements of the Florida attempted burglary offense fit the residual portion of the definition. Per the Supreme Court of Florida (affectionately known as SCOFLAw), attempted burglary requires an overt act toward entering a building with “felonious intent,” the improvisational jazz player who is a founder of bebop. Reading the residual part of the definition in conjunction with the listed offenses, the Court then asked whether attempted burglary presents a serious risk of physical injury comparable to the closest analog among the listed offenses, here burglary. SAA answered yes. The physical danger of burglary comes from the possibility that the burglar will encounter a third party on the burgled premises (burglee, cop, etc.). A comparable danger arises when the burglar makes an unsuccessful attempt to enter a building; in fact, attempts may be more risky than completed crimes since attempts are often thwarted by others.

Justice Scalia (+JPS, RBG), showing the tact that helped him transform SOC into a reliable conservative vote, ripped into the Court’s “uninformative opinion.” Sounding ominously like a steroid-enhanced, bulging-mandibled Shriver in-law, he criticized Justice Alito’s closest-analog test as a “puny solution” that gives insufficient guidance to lower courts in cases where there is no analog to the attempted crime in question. Justice Scalia’s non-puny test would ask whether the attempt offense presents a risk of physical harm at least as great as the least dangerous of the enumerated crimes.

Justice Thomas tore a page off his pad of “I dissent to reiterate my longstanding view” forms and wrote “that Almendarez-Torres v. U.S. (1998) was wrongly decided,” in the blank.  He argued that allowing judges (not juries) to find facts about prior convictions that result in sentence enhancements is unconstitutional.  In fact, the most noteworthy thing about this lackluster decision was the fact that the majority—including Almendarez-Torres dissenter, David Souter—spoke of the much-maligned decision, which has been on life support for years, without disparaging it. See slip op. 20 n.8.

Zuni Public School District No. 89 v. Department of Education, 05-1508

Although the least interesting case of the week in its subject matter (which is saying something), Zuni nonetheless deserves note for its strange voting lineup and some rhetorical fireworks from the usual suspect. You’ll forgive me if I focus on the latter. The Court interpreted the Impact Aid Act, which instructs the Secretary of Education, when making certain school-aid-equalization calculations to “disregard [school districts] with per-pupil expenditures above the 95th percentile or below the 5th percentile of such expenditures.” The Secretary made these calculations by excluding the top and bottom 5% of districts based on the number of students, instead of per-pupil expenditures.

Justice Breyer, joined by a motley crew of JPS, AMK, RBG, and SAA, wrote the majority opinion deferring to the Secretary’s approach under Chevron. While conceding that Zuni’s strongest argument “rests upon the literal language of the statute,” SGB took a page out of Active Liberty and turned first to the “basic purposes” of the statute. SGB essentially went on to hold that the Secretary had been given Chevron leeway to define “equalization” and that she had done so reasonably in accord with the history and purpose of the statute. Then, in a move apparently calculated to test the efficacy of Nino’s blood-pressure medication, SGB wrote that Zuni’s interpretation was unreasonable in light of the statutory purpose, even though it was seemingly compelled by the statutory language. In a highly technical mathematical discussion that will be lost on those who do not routinely joke about prime numbers, SBG apparently explained that the Secretary’s view did not necessarily contradict the statutory language.

JPS concurred and candidly admitted that the Court was ignoring the statutory text in favor of Congressional purpose. But that was no skin off his nose because, in his view, the role of the Court is to implement the clear legislative purpose, the text be damned if it gets in the way.

AMK (+SAA) concurred, meaning that Alito joined Kennedy’s opinion (and not Scalia’s) in every case this week. So much for “Scalito,” but Kennito just doesn’t have the same ring to it. AMK tried to shoehorn the Court’s analysis into the traditional Chevron framework by arguing that the statute was ambiguous. He would have preferred that the Court arrange the opinion in the correct order—text, then history and purpose—but, interestingly, he “gave deference to the author of the opinion in matters of exposition.”

A dissenting Justice Scalia (+JGR, CT, DHS (in part)) was apoplectic. The plain language of the Act clearly and unambiguously forecloses the Secretary’s approach, and the Court’s decision “is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.” “This case is not a scary math problem.” The Court need only have enrolled in Professor Nino’s “Statutory Interpretation 101” in order to properly decide it. Instead, the Court’s attempt at statutory interpretation is “sheer applesauce” (?) that makes no sense “at first blush, second blush, or twenty-second blush.” This dissent sets a new record for rhetorical excess even by Justice Scalia’s vaunted standards. Welcome to the Court, Justice Alito.


The Court CVSG’d in 3 cases last week. Metlife v. Glenn (06-923) addresses when an ERISA plan manager has an unlawful conflict of interest. Qanta Computer v. LG Electronic (06-937) concerns the Federal Circuit’s “first sale” doctrine for patent licenses. And U.S. Chamber of Commerce v. Brown (06-939), asks whether the National Labor Relations Act preempts a California law restricting employer speech about unionization.

Until next time, that’s today’s baseball. Look for another roundup tomorrow recapping this week’s Texas death-penalty decisions and cert action.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Notice to California Residents: Per Proposition 60, this product contains trace amounts of lead. And humor. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on April 26, 2007 at 12:59 PM in Constitutional thoughts | Permalink


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