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Tuesday, November 17, 2015

Scalia (sort of) gets it, the media (still) doesn't

According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter  from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.

A few thoughts after the jump.

First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.

Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point  is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by  the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.

Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Howard Wasserman in a previous comment said: "Again, he concedes it can be "binding the parties in extreme cases" where extreme just so happens to correspond with decisions he rejects. But there are some who regard Obergefell or, say, Roe/Casey, as similarly extreme."


Ian Millhiser says (sic) "even if it may be medicine that is justified in the face of decisions" of that sort. An example of a qualifier not merely to what Scalia might have said alone, contra your assertion, but throughout. "May" is the word he used -- not "can" -- he is suggesting a possible approach, one he already showed he was wary about using. Not that it was "okay" -- "maybe" is more accurate.

And, yes, that is how it works in practice -- Lincoln, e.g., didn't raise his principle on how to apply USSC opinions merely as a general statement. He -- and Prof. George says Scalia brought up the precedent -- did so for a specific case. Again, you might not like the prudential approach, but it is repeatedly applied selectively to "bad" or "dangerous" or some other subjective term decisions.

Yes, some thought Roe and Obergefell were such decisions. Helps explain why the piece is wary about courts "losing authority" but he doesn't think the courts would be merely an "advisory" authority in the process. As he notes, his concern is such intransigence would lead to "lengthy and expensive series of lawsuits" and make enforcement "very challenging." And, this was addressed in the past when discussing departmentalism and your views got pushback from at least one other law professor. Everything isn't all crystal clear here. You are advocating and opining a tad.

There was some surprise that regarding labeling New Deal decisions as "evil" -- the word might be a bit strong but yeah many did find blockage of various New Deal rulings quite bad & in time the Supreme Court strongly changed gears on various matters there including minimum wage and the breadth of the commerce and taxing power.

Anyway, contra Adler, I appreciate the response to this imho over the top ("lose his mind" etc) comment & share his concern that Prof. George's remarks cannot fully be taken on face value. On that level, the whole commentary might have been a mistake, though I appreciate that the original piece hedged its bets repeatedly.

Posted by: Joe | Nov 18, 2015 4:36:50 PM

Joel: Millhiser and I disagree at the fundamental level of whether what Scalia said 1) accurately describes the effect of judicial decisions and the powers of executive officials and 2) of whether that is a good or bad thing. He believes Scalia is wrong and that the model he proposes is normatively bad; I believe Scalia is right (in fact, his specific comments do not go far enough, although I see the point of prior comments) and that is how litigation is supposed to work.

Pc: It all depends on what the precedent says, the scope of the right created, and the details of implementation. Obergefell is pretty easy--you can't treat same-sex couples different than opposite-sex couples in terms of issuing marriage licenses. Although even that leaves some litigation questions, such as whether an official can claim some religious accommodation (see Davis). The scope of the right recognized in McDonald is a lot different and more fact-bound, meaning there may be more litigation.

Posted by: Howard Wasserman | Nov 18, 2015 4:09:45 PM

prof Adler, would you have said, post McDonald, that there was no question Chicagoans have a right to a handgun? Or that they were guaranteed to win a suit to enforce that right? It hasn't played out that way so far, but maybe it will in another five years. Maybe it won't.

Posted by: Pc | Nov 18, 2015 3:57:35 PM

I still fail to see where exactly you disagree with Millhiser. It's possible that you disagree on some technical grounds that are over my head.

Do you disagree on the practical outcome of departmentalism, as discussed here? Would it result in anything other than extra litigation and anti-homosexual demogoguery?

Posted by: Joel | Nov 18, 2015 3:19:33 PM

Finally, w/r/t Lincoln: The power of an official, consistent with his oath, to act contrary to court precedent (outside a directly controlling judgment) necessarily includes the power to, consistent with his oath, act in compliance with court precedent and even to believe that this is *always* the proper course. Scalia was not saying officials had to ignore the court, only that neither their oath nor the court itself required that.

Posted by: Howard Wasserman | Nov 18, 2015 2:54:56 PM

Re Cooper v. Aaron: The Little Rock Board of Ed had been enjoined by a district court in separate litigation initiated by families in Little Rock. That injunction had been entered on the strength of Brown (as binding precedent), the Board was trying to dissolve the injunction, and SCOTUS said no. Dicta aside, this was a straight-forward case of a lower court applying binding precedent. The BOE had no obligation had that injunction not entered.

Re FRCP 65(d)(2): At its broadest, 65(d)(2) reaches those subject to the control of parties. Which certainly would not extend to anyone outside of those four states and likely does not extend to Kim Davis, who is not directly controlled by the named Kentucky defendant. And, in any event, the Obergefell injunction only *protects* the named plaintiffs, but does not require conduct towards any non-party.

Posted by: Howard Wasserman | Nov 18, 2015 1:49:34 PM

I would also point out that Scalia is wrong on the facts and the law. T FRCP Rule 65(d)(2) states that an injunction binds more than the just the parties to a particular case.

I would also point that Lincoln stated quite pointedly in a speech in 1857 only three months after Dred Scott was decided,

"We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it."

Posted by: anon | Nov 18, 2015 1:24:51 PM

Scalia is a buffoon of the highest order. I'm sure he also believes he is the ruler of some distant world(s). I liken him to a person with severe dementia rambling.

Posted by: anon | Nov 18, 2015 1:13:14 PM

Re: Asher
Indeed, I think it'd think you'd be pretty hard pressed to find anyone today to make a full-throated defense of the Agricultural Adjustment Act, for example.

Posted by: Brad | Nov 18, 2015 12:58:07 PM

Doesn't Scalia ignore Aaron v. Cooper, 358 U.S. 1 (1958), where the Supreme Court held that Brown v. Board of Education applied to schools in general, not just to the schools involved in Brown?

Posted by: lysias | Nov 18, 2015 12:36:22 PM

I just have to add, I wasn't aware that "the anti-government decisions resisted by Roosevelt . . . are now widely viewed as evil," or even viewed as evil by anyone.

Posted by: Asher Steinberg | Nov 18, 2015 11:37:30 AM

pc writes:

"A practitioner would recoil at making a confident claim such as the one you make -- "There is no question that Obergefell is binding on lower courts and future litigation will produce a new injunction" -- because that simply is not true."

Tell that to Kim Davis, who was held in contempt (and correctly so) not because she refused to follow Obergefell but because she refused to follow a lower court order.

Also, FWIW, the original Millhiser post has an update, but it doesn't say much. From the post and the update it is rather clear Millhiser does not understand departmentalism.

Posted by: Jonathan H. Adler | Nov 18, 2015 11:11:55 AM

he's describing how the law works in practice and you're describing how it works in theory. A practitioner would recoil at making a confident claim such as the one you make -- "There is no question that Obergefell is binding on lower courts and future litigation will produce a new injunction" -- because that simply is not true.

Posted by: pc | Nov 18, 2015 10:31:52 AM

Why suggest this tactic, except as a means to delay implementation of decisions Scalia doesn't like? It may be technically true that officials can ignore some rulings until they are specifically enforced against them, but why encourage such behavior?

Posted by: Joel | Nov 18, 2015 9:37:14 AM

Again, he concedes it can be "binding the parties in extreme cases" where extreme just so happens to correspond with decisions he rejects. But there are some who regard Obergefell or, say, Roe/Casey, as similarly extreme.

So that leads back to me: *All* (non-class) judgments--be they extreme, evil, or otherwise--are binding on the parties only and it takes a new judgment against new parties, applying the earlier precedent, to make it binding.

Again, if you think I'm wrong: Why was it necessary to get a new injunction in a new court against Kim Davis? If Obergefell directly controlled her, the new injunction should not have been necessary.

BTW, "grain of salt" was him hedging as to whether Scalia actually said this, not to Millhiser's evaluation of what he said.

Posted by: Howard Wasserman | Nov 18, 2015 8:52:02 AM

The things I am criticizing him on are not up for debate: Accepting departmentalism does not render the Court advisory-only and does not make future recover only "conceivable." There is no question that Obergefell is binding on lower courts and future litigation will produce a new injunction. Nor is it debatable that a judicial decision is legally binding on the parties only--try holding Kim Davis in contempt of Obergefell itself if you don't believe me.

Now if Millhiser wants to disagree with what follows from that, fine. But he can't make departmentalism sound like a great evil while ignoring these backstops.

And an argument that "departmentalism is ok only for 'evil' decisions--where evil happens to correspond with what I like" is not a serious argument.

Posted by: Howard Wasserman | Nov 18, 2015 8:46:29 AM

"lose his mind"

glasshouses should be applied to some around here

The remarks seem cautious. "Grain of salt" ... "if" ... "according to" ... "in fairness to Scalia" etc. The hedging probably warrants to be more an example than is provided here.

Finally, again hedging, the article waringly suggests (again it makes clear it is not conclusively saying this is what was said) the "strong medicine" of binding judgments just to the parties in the way discussed "may" be okay in special cases.

The commentary already opined the approach is a lousy idea and not just in cases where he agrees with the results. But, he says MAYBE (insanity is so temperate these days) just binding the parties can be acceptable in extreme cases. The professor here might think prudence is horrible as a criteria but in the real world it sometimes is applied.

And, even there, the matter can come back to the USSC and in time be seen as more binding. Anyway, the op-ed notes SCALIA is the one who brought up the specter of Dred Scott. If concern for neutral rules is here, the proper party is unclear. Don't want to lose our minds.

Posted by: Joe | Nov 18, 2015 8:42:26 AM

you're being unfair to Millhiser. As far as I can tell, everything he said was factually correct - I don't even see you suggesting otherwise. Where is it written that he, or anyone else, has to defer to your conception of judicial power?

Posted by: pc | Nov 17, 2015 10:41:16 PM

I have always assumed that Millhiser was a non-lawyer reporter, but he apparently graduated with honors from Duke Law and clerked for a circuit judge.

On the merits of this thing, I suspect that what Scalia means is that, if a decision is compelled by the text or original understanding of the Constitution, officials have a duty to follow it, not because the Court decided it, but because they have a duty to follow the Constitution-mandated rule of law contained in that decision. This makes perfect sense if one's an originalist. What he says doesn't quite make sense as far it implies that officials must follow decisions that merely have "a warrant in the text or original understanding." There, if one's an originalist departmentalist, one could adopt some other view of the Constitution that also has "a warrant." But perhaps his off-the-cuff formulation of his idea (or George's recollection) was imprecise.

Posted by: Asher Steinberg | Nov 17, 2015 10:39:31 PM

Re: your first point. I think what Scalia meant was that if the "ruling[has] a warrant in the text or original understanding of the Constitution" then government officials are bound by the *Constitution* itself, irrespective of how the Supreme Court interpreted it. In other words, Departmentalism really only matters *after* one first decides that the Court's ruling is wrong. I do not think Scalia meant to suggest that if the other branch happens to disagree with the Court about the best textualist/originalist interpretation of a given clause, it is nevertheless bound by the Supreme Court's ruling. On the other hand, government officials will never be bound (in the case of non-parties) by non-textual/originalist rulings because Scalia thinks those are always wrong.

Posted by: @greg651 | Nov 17, 2015 10:14:20 PM

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