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Stanford Update

Stanford Dean Jenny Martinez has distributed a 10-page letter to the law school community, with a thorough discussion of the recent disruption of Judge Kyle Duncan's lecture. Unlike the earlier apologies from Martinez and President Marc Tessier-Lavigne, the new letter unequivocally condemns the disruption and calls administrators to account for failing to intervene when the heckling became intense. 

Some key passages:

The President of the University and I have apologized to Judge Duncan for a very simple reason – to acknowledge that his speech was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members who wanted to hear them, as a result of the failure to ensure that the university’s disruption policies were followed.

The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.

Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints. It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.

Associate Dean Tirien Steinbach is currently on leave.

[I]t should be obvious from what I have stated above that at future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard (boldface original).

[W]ith respect to the students involved in the protest, several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction (boldface original).

Dean Martinez also commented on the hateful and perhaps threatening messages that students and administrators, including Dean Steinbach, have received, promising an investigation and referrals to law enforcement if warranted.

You can read the letter here.

 

The Administrative Law Dispute at the Heart of the Census and DACA Cases

It is an exciting time to study administrative law. The pillars of this field — cases such as Chevron, Humphrey’s Executor, and Whitman v. American Trucking — seem likely to be up for grabs at the Supreme Court. And the Court’s resolution of the controversial census and DACA cases has turned (or will likely turn) on applications of the Administrative Procedure Act’s “arbitrary and capricious” standard of review. Both cases involve decisions of enormous importance to the Trump Administration. What you may not know is that the arbitrary and capricious standard of review is also up for grabs. As explained in my recent paper (written with Barry Sullivan and forthcoming in the Connecticut Law Review), the Supreme Court has never formed a stable majority on the question of how much deference courts owe the executive branch under this standard of review. Should courts find a decision arbitrary and capricious where an officer implements the president’s preferred policies but omits expert analysis of relevant data? Or should courts ease up on analytical requirements and provide greater latitude for policies implemented at the behest of an elected president?

Unfortunately, the Court’s 2019 decision in Department of Commerce v. New York sends mixed messages on these questions. The Secretary of Commerce (Wilbur Ross)’s controversial decision to add a citizenship question to the 2020 census drew shifting coalitions of five Justices. Chief Justice Roberts provided the deciding vote and wrote the opinion for each coalition, and Justices Alito, Gorsuch, Kavanaugh, and Thomas joined the part of the Chief Justice’s opinion that approved the Secretary’s general analysis. The Chief Justice granted great deference when he determined that the Secretary’s explanation need only lie “within the bounds of reasoned decisionmaking.” It was reasonable for Secretary Ross to conclude “that reinstating a citizenship question was worth the risk of a potentially lower response rate,” even though the Secretary bypassed routine testing designed to provide additional empirical evidence about response rates.

Had the Court resolved the case on this first issue alone, its decision may have signaled a shift to a more deferential version of arbitrary and capricious review. However, procedural irregularities led the Chief Justice to switch sides and invalidate the Secretary’s decision on grounds of pretext. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined the Chief Justice’s opinion on this issue. Roberts’s disapproval focused on the “significant mismatch between the decision the Secretary made and the rationale he provided.” While the finding of pretext turned on “unusual circumstances,” none of the opinions expressly discussed late-breaking evidence of a clandestine study conducted by Dr. Thomas Hofeller, a redistricting specialist. This evidence raises the possibility that Secretary Ross was aware of Hofeller’s findings (that a citizenship question would benefit “Republicans and Non-Hispanic Whites”) and that the Secretary declined routine testing to avoid collecting public evidence on these points. The Chief Justice’s finding of pretext implicitly addressed this concern, but it failed to articulate a manageable standard for future cases.  

The Court missed an important opportunity to mitigate similar concerns in future cases. Rather than a finding of pretext “good for this day” only, the Court might have achieved the same result by finding the Secretary’s analytical shortcuts arbitrary and capricious. The initial and more deferential standard of review applied by Chief Justice Roberts glossed over the fact that the Secretary chose to base his official decision on limited evidence about response rates when he bypassed testing routinely employed for new census questions. A less deferential approach would reflect Justice Scalia’s earlier suggestion, in FCC v. Fox I, that “failure to adduce empirical data that can readily be obtained” might render a policy change arbitrary and capricious. It would also align with Justice Kennedy’s concurrence in the same case. Justice Kennedy emphasized the importance of agency decisions that are “explained in light of available data,” “informed by the agency’s experience and expertise,” and “justified by neutral principles and a reasoned explanation.”

It is unclear whether the Court will have a chance to clarify the arbitrary and capricious standard of review when ruling on the Trump Administration’s decision to rescind the DACA (or Deferred Action for Childhood Arrivals) program. While this case is extremely important, it involves a distinct set of humanitarian policy concerns, including reliance interests. Broader questions about the arbitrary and capricious standard of review seem likely to remain unanswered in 2020.

UCI Supreme Court Term in Review

UC-Irvine will host and livestream the 8th Supreme Court Term in Review next Monday, July 9. Panelists include UCI faculty Leah Litman (a participant in our Prawfs symposium) and Alexandra Natapoff, along with Erwin Chemerinsky, Justice Goodwin Liu of the Supreme Court of California, and Erin Murphy of Kirkland & Ellis; Rick Hasen will moderate.

(SCOTUS Term) Things Are Every Bit as Bad as They Appear, Part I: The Travel Ban

When I accepted Howard’s invitation to join this June’s Supreme Court symposium almost a year ago, I signed off by hoping for an eventful term. Lesson learned: be careful what you wish for.

In writing about the events of the last few days, it is important not to be hyperbolic. But it is equally important not to just write everything off as business as usual and shift into insider baseball or law geek mode. The decision in Trump v. Hawaii was a momentous one, the kind of bet-the-reputation-of-the-courts opinion that will remain at the center of our debates about the proper role of the courts for generations to come.  And the decision of Justice Anthony Kennedy to retire at this moment in our political and judicial history raises the prospect of the most significant shift in our jurisprudence since at least 1936.

In this blog post, I offer a few thoughts on the former; in my next, I will take on the latter.

Many people have written sharp and appropriately anguished critiques of the Court’s decision to uphold the Trump administration’s infamous travel restrictions in Trump v. Hawaii. Here I want to emphasize two points that have been made by a few commentators but have not been at the heart of the critiques.

First, despite all its citations and its well-written sentences, the majority opinion is incredibly intellectually lazy.  The opinion relies on a small set of generally accepted decisions holding that the President has quite broad powers in the areas of immigration, foreign affairs, and national security; that those powers are at their apex when Congress has set up statutory schemes that grant the President broad discretionary authority; and that judicial review of such decisions is limited and deferential.  Taking those cases as directly on point, the majority of the Court treats this case as an easy one, squarely within the heartland of that rule.

But Trump v. Hawaii wasn’t a case about the existence of deference; it was a case about the limits of deference.  Constitutional law is full of deference doctrines: some extreme, some narrow, some based on substantive separation of powers or federalism concerns, some based on more pragmatic implementation concerns. As a general rule, deference doctrines have limits. They are presumptions about competence or authority or official good will, but they are only presumptions.  They can be rebutted by some fact or factor or combination of circumstances or evidentiary showings.

In most areas of constitutional law, direct evidence that the decisonmaker was biased is one of the primary facts that triggers an end to deference and requires serious judicial inquiry. This rule has particular force when the bias takes the form of religious, racial, or ethnic discrimination, as those forms of bigotry constitute particular affronts to the Constitution’s text and values.

To many of us, it was self-evident that this case was covered by that meta-doctrinal principle, that the deference normally due the President in immigration matters ran out when he put his own biases on the table. I knew that other disagreed and was braced for an opinion that disagreed with me on either the law or the facts (for example, an opinion holding that the Establishment Clause did not apply in this context or that the President’s comments could not be considered or did not establish bias). What I was not prepared for was an opinion that completely failed to engage with the many precedents from all over the Court’s jurisprudence suggesting that deference runs out in the presence of direct evidence of bigotry or to offer a positive account of the boundaries of judicial deference in this crucial area of the law.

Trump v. Hawaii was, thankfully, a case of first impression, because it involved the extremely rare situation in which a President provides substantial direct evidence of his or her bigotry while acting in an area of broad executive authority.  The Court acknowledged that we were operating in this new territory—long a staple of academic hypotheticals—and then completely ducked all of the important normative and doctrinal questions that arise from those sorry facts, simply applying the pre-existing rules that were designed to apply to run-of-the-mill presidential actions.

Second, if taken literally and applied broadly, the doctrinal approach that the majority assumes its way into is staggeringly broad.  (For a heroic attempt to read the opinion's deference more narrowly, see Kate Shaw's reaction.) The majority opinion bristles and huffs at Justice Sotomayor for suggesting that its approach or reasoning has anything in common with the Court’s notorious opinion in Korematsu, despite the many historical and jurisprudential parallels so well-articulated by Fred Korematsu’s descendants, but the truth of the matter is that on doctrinal terms (though obviously not consequentialist ones) the opinion was in some important ways worse than the Court’s opinion in Korematsu.  In Korematsu, the government’s prejudices had to be ferreted out indirectly through circumstantial evidence, critiques of its policy reasoning, and appeals to general social facts.  As Jed Shugerman pointed out in an essay making a similar point, the direct evidence that the government was lying and that its national security concerns were trumped up nonsense wouldn’t come to light until decades later.

Trump v. Hawaii is different.  Here the President has proudly and repeatedly embraced a desire to discriminate against Muslims, has doubled down on his prejudice at every turn, has asked his advisors to draw up a policy to implement that bigotry, and has continued to publicly explain the policy in terms of his antipathy to adherents to a particular religion.  It is as if President Roosevelt had made the desire to lock up Japanese Americans a centerpiece of his election campaign, had used his fireside chats to stoke racial prejudice, and then—in a very Jack Nicholson, A Few Good Men, sort of way—publicly embraced the racist grounding of his own policy.

Korematsu was a horrific decision that smart and honorable folks saw through and denounced at the time.  Its fundamental flaw was that it refused to impute to the executive the prejudice necessary to break deference in the face of an overwhelming circumstantial case that the government was guided by such illicit aims.  In Trump v. Hawaii, no such ferreting out of indirect evidence was necessary. The President said the quiet parts out loud.  And the Supreme Court said there is nothing we can do about it.  That is not deference; it is abdication. It is dangerous and it is wrong.

(SCOTUS Term) Trying again with First Amendment retaliation

I wrote last week that the narrow and fact-specific decision in Lozman v. Riviera Beach reflected a vehicle failure--the Court wanted to consider the effect of probable cause on First Amendment retaliation claim, but took a case in which retaliatory intent rested with members of the city council, not the arresting officer. The Court on Thursday granted cert in Nieves v. Bartlett, a decision out of the Ninth Circuit (the court most willing to allow plaintiffs to show retaliatory intent even if there was probable cause) that squarely tees-up the issue without possible intervening factual issues.

(SCOTUS Term) What is back in play with Kennedy retiring?

Some random thoughts on Justice Kennedy's retirement:

• I agree with Mike Dorf's argument that it is silly to doubt how this will play out--the Republicans have 51 votes, there is no filibuster, Senate Republicans all are going to be on board, and Mitch McConnell will make sure this happens before the elections. I would add that President Trump announced that his nominee would come from a list of 25 names that the White House posted in November, all of whom no doubt are pre-approved by White House Counsel and the Federalist Society; there is not going to be a Harriet Myers or Harold Carswell to gum up or delay the works. (Some of us at FIU would be fascinated to see Trump nominate Labor Secretary, and our former dean, Alex Acosta, although he is not on the list). And I do not believe the risk of overruling Roe/Casey or Obergefell will cause Collins or Murkowski to defect.

• This is the last chance chance for Eric Segall's eight-person/4-4 partisan Court. In fact, it is the perfect chance, even better than 2016. It would leave two divided camps with no real median Justice between the camps, precisely what Segall has in mind to force some compromise.

• Constitutional protection for reproductive rights is history at some point soon. The only question is what state's outright ban on abortion will reach the Court first. Any other doctrines for which Kennedy was the fifth vote with which his replacement may disagree? Might a state reenact and attempt to enforce a sodomy law or a same-sex marriage ban? What will happen with marriage-equality adjacent issues (custody, adoption, etc.)? Note that under judicial departmentalism, nothing stops a state from enacting and enforcing such laws other than the certainty of a judicial loss. Depending on Kennedy's replacement, that certainty is gone. 

• If Republicans keep the Senate in November and Trump remains unpopular, might Thomas retire next year (there were rumors he might go this year)? That would give Trump the same number of SCOTUS appointments in one term as Reagan had in two and more than Obama, Bush II, or Clinton had in two. The 18-year term limits proposals look increasingly sensible.

(SCOTUS Term) Janus

As I have said, the outcome in Janus was so over-determined, I am surprised it took this long to come out. It was decided--and everyone knew it was decided--on the night of November 8, 2016. I figured Alito and Kagan (who sparred in the two prior cases that set this up) had their respective decisions pre-written eighteen months ago.

My one take-away is that the opinion demonstrates why asking SCOTUS nominees about stare decisis is pointless. And so is looking at their decisions as lower-court judges. Stare decisis is too easy to pay lip-service to in a hearing and too malleable (to use the word that was all the rage in the opinion) to limit Justices determined to overrule precedent. And nothing that someone does as a  lower-court judge predicts what she will do when the only limits are prudence and rhetoric.

Kagan scores an important point by arguing that the only reason that Abood had become a First Amendment "outlier" was Knox and Harris, Alito decisions that included dicta attacking Abood that the majority then used to argue that Abood had been undermined. As Kagan wrote, "relying on them is bootstrapping—and mocking stare decisis. Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as 'special justifications.'”

Time will tell if this decision hurts public-sector unions as much as advocates (and the dissenters) fear. I do not know labor law well enough to know. The majority says the union could charge nonmembers for representing them in arbitration or grievance procedures, although I do not know if that would be sufficient. Meanwhile, Aaron Tang offers a legislative solution to provide unions with sufficient resources (as have others). But Kagan is correct that there is now an enormous gap in the degree to which government can control employee expression when it comes to unions versus individual speech activities. It cannot compel non-members to pay for work-related speech (which the majority defines as being of public concern), but it can fire workers for making the same speech in and around the workplace. Kagan argues that this will prove to be a "unions-only" protection for government employees objecting to unions, who will otherwise find their at-work speech rights quite limited.

(SCOTUS Term): Justice Kennedy is not a centrist (Several Updates)

For personal and political reasons, I hope Justice Kennedy does not retire. I care deeply about reproductive freedom and a Trump-appointed/Fed Soc-approved replacement would be a fifth vote to eliminate constitutional protections for reproductive freedom as early as fall 2019.

But this rests on a fundamental misconception: Justice Kennedy is not a centrist and never has been. He is a conservative  (although not an Originalist) who follows the conservative judicial line on virtually everything. And this did not begin with the rise of Donald Trump. Kennedy has followed the conservative judicial on just about everything except reproductive rights (and not always) and free speech (which is increasingly becoming a conservative preference), [Update: I forgot LGBTQ rights, of course--although I would bet against Kennedy concluding that sexual-orientation discrimination is sex discrimination under Title VII]. And there are the stray votes to uphold race-based affirmative action in education or in the military-commission cases [Update: And some death-penalty stuff]. Otherwise, he has repeatedly been in the five-Justice conservative majority on most issues--expanding state sovereign immunity, narrowing congressional legislative power, expanding qualified immunity, narrowing Bivens, narrowing habeas, narrowing standing, allowing expanded government support for religion, expanding state power to limit voting. We could go on. And his almost-certain vote in Janus should not be surprising, as Kennedy has been consistent in his dislike for Abood.

It is not that his vote is not in play anymore. It is that this Term's cases did not present the rare issues on which he departs the conservative position.

Update: Dahlia changed her mind following Kennedy's announcement, beginning the piece with:

It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative.

That was a quick reversal. But I obviously agree with where she landed.

Second Update: Eric Citron at SCOTUSBlog identifies five areas, covering 11 cases, in which Kennedy's conclusions or approaches departed from the rest of the conservative Justices.

(SCOTUS Term) Korematsu and the Court of History

In declaring valid the travel ban, the Chief did not cite or discuss Korematsu. He raised it at the end of the opinion, in response to the dissents' "rhetorical" trick of raising that case. But the Court took the "opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and--to be clear--'has no place in law under the Constitution.'" (quoting Jackson's dissent). Joey Fishkin questions how Korematsu is different than this case or what makes Korematsu wrong and the current decision upholding the restriction right, rejecting the distinction based on facial neutrality. The post is worth a read.

I was struck by the Court's reference to the "court of history" in announcing that Korematsu did not reflect a valid interpretation of equal protection. This language hearkens to New York Times v. Sullivan, which declared that "the attack on the validity" of the Alien and Sedition Acts had "carried the day in the court of history."

SCOTUS Term: Justice Kennedy’s Imprint on Masterpiece Cakeshop and Becerra

The Court today in Becerra held invalid California’s laws requiring pro-life “crisis pregnancy centers” to alert customers that (1) the state provides low cost family planning services, including abortion services, in the case of licensed pregnancy-care facilities, or (2) that the facility is unlicensed, in the case of unlicensed facilities. Becerra is a speech case, and Masterpiece Cakeshop, decided earlier this month, was predicated on religious animus grounds (although really should be thought of as a speech case).  However, the two cases seem greatly influenced by Justice Kennedy’s antipathy towards the state’s deciding, in a heavy-handed (perhaps arrogant) way, what is best for its citizens to think. 

In Becerra, Justice Kennedy’s concurrence chides California for enacting what the state describes as a “forward thinking” piece of legislation.  Kennedy notes that, “it is not forward thinking to force individuals” to unhappily be the instrument of the state’s favored position.   In Masterpiece Cakeshop, Justice Kennedy’s majority opinion takes the Colorado Civil Rights Commission to task for denouncing religion in its desire to create a more progressive civil rights regime.  Tolerance of the perceived intolerant seems to be Justice Kennedy’s approach, an approach that bodes well for robust First Amendment protections.

But perhaps too well?  Scholars and advocates argue that the First Amendment has become “the new Lochner,” a sword to invalidate economic legislation.  This is especially true in an age of soft paternalism, where speech-implicating disclosure requirements have replaced outright prohibitions.  Masterpiece Cakeshop,, in future form, has the potential to undermine decades of civil rights progress applying anti-discrimination provisions to businesses.  Becerra, the dissent fears, has the potential to disturb a wide swath of disclosure requirements -- so long as they are deemed controversial and not simply factual.     

More than Lochner, I think both cases echo the spirit of West Virginia Board of Education v. Barnette, the case deciding that public school students cannot be forced to salute the flag.  I’ll be participating in a symposium on the 75th anniversary of Barnette in the Fall. I will be writing about how courts should treat what I call “good orthodoxy” cases, where a claimant challenges the constitutionality of a law or policy that was designed to remedy the harms committed against historically marginalized groups.  The key to avoiding Lochner-like concerns will be deciding when the law at issue compels speech, and when it regulates something more akin to conduct.

(Cross posted at In a Crowded Theater.)

 

(SCOTUS Term) Preliminary Adjudication

Perhaps recognizing how many constitutional cases are coming to it on immediate interlocutory review of the grant or denial of preliminary injunctions, the Court has been couching its constitutional holdings in that preliminary posture. In NIFLA, the majority held that "petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment." In Hawaii, the majority concluded that "plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."

In both, the Court writes as if its constitutional decision was only for purposes of deciding whether to halt enforcement of the challenged law pendente lite. And in both the Court remands for further proceedings, seeming to suggest that this is not the final word on the constitutional validity of the challenged laws and that there may be further arguments to be made during further proceedings on remand.

This seems like something new. Significant constitutional cases have come to the Court on review of preliminary injunctions, at least where issued following a full and detailed hearing (if not a full "trial"). The Court's determination of constitutional invalidity, as part of the likelihood-of-success prong, was seen as the last word on the constitutional merits in that case, requiring only an after-notice conversion to a permanent injunction on remand. And maybe that is what the Court understands as further proceedings for these cases. But putting this in the language of the preliminary-injunction standard hints at a more interlocutory decision and the expectation that more detailed proceedings, including a full trial on the merits, may be required.

(SCOTUS Term) The goose is sauced, but the gander is not

On Tuesday, the Court in NIFLA v. Becerra declared invalid, at least preliminarily, California laws requiring crisis pregnancy centers to disclose and advertise certain information about the procedures and services (specifically related to abortion) that can be had for free at state-run facilities. I do not know how much this will hurt the state, because there should be other ways for the state to get this information out--including posting signs outside the clinics themselves.

The problem is that the Court's analysis suggests that the goose and the gander will not be sauced in the same way. The counterpart to California's compelling facilities to provide information about abortion services is states compelling doctors to inform patients about about the development of the fetus, alternatives to terminating the pregnancy, and (often false) information about the risks and effects of abortion, as well to show the patient the ultrasound and play the fetal heartbeat. The Court declared valid one such law valid in Planned Parenthood v. Casey and others have been challenged unsuccessfully in the lower courts. The majority's explanation is that Casey dealt with informed consent surrounding a "medical procedure," analysis that also applies to other abortion script laws. On the other hand, these clinics are not performing "medical procedures," so the state cannot compel providers to say things as part of informed consent. But that gives the game away--terminating the pregnancy always requires a procedure, whereas not terminating the pregnancy does not require a procedure. (Well, other than ultrasounds, prenatal tests, C-sections, and other things related to birth itself). So this decision likely will be used to declare valid speech compulsions imposed by legislatures seeking to eliminate abortion, while barring compulsions by legislatures seeking to protect women who might seek abortions.

If the "medical procedure" line does not show the one-sidedness, Justice Kennedy's short concurring opinion, emphasizing the viewpoint-discrimination in these regulations (a point Justice Thomas avoided), clinches the point. The challenged law "compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these." Medical providers opposed to abortion can point to such precepts. Medical providers willing to perform abortions will not be able to identify a similar philosophical, ethical, or religious precept against having to read to a patient a script containing false medical information.

Finally, a question about that concurring opinion. Kennedy wrote it for himself, the Chief, Alito, and Gorsuch--in other words, four of the five Justices in the majority, other than the author. Can anyone recall this happening--four out of a five-Justice majority join one separate opinion? What went on internally that Thomas would not include something about viewpoint discrimination, even in a footnote, when every Justice joining his opinion wanted to talk about it? And why did the four remain with Thomas as author? Surely there was nothing in the two-page concurrence with which Thomas disagrees.

SCOTUS Term: Free Thoughts on Trump v. Hawaii

1. I was wrong. I predicted at a conference last month that the Court would uphold the proclamation either 7-2 or 6-3, but it was 5-4. Everybody else on the panel was wise enough not to make such a concrete prediction. And though the Court never says so, I'm still not so sure that the Court would have upheld the first version of the travel ban.

2. Donald Trump is mentioned by name only twice in the 39-page majority opinion, once as "President Trump" in the very first sentence of Part I.A, and once as "then-candidate Trump." Every other reference is to "the President." By contrast, Justice Sotomayor's dissent contains repeated references to "President Trump," mentions the "Trump administration," etc. I doubt that either is an accident.

3. The majority's declaration that Korematsu is overruled is an important statement. I confess I had not predicted that the Court might repudiate Korematsu and uphold the proclamation at the same time, but it is a clever move. Few people are going to want to complain that the Court went out of its way to repudiate a case that we all agree deserves repudiation.

Some scholars had suggested that Justice Thomas's prior opinions might provide some support for Korematsu, but Justice Thomas fully joins the majority opinion, including the repudiation.

Technically, the Court does not overrule Korematsu, but says that it has already "been overruled in the court of history," and was "gravely wrong the day it was decided." (Those are two different things -- on the Court's view Korematsu was wrong but precedential on December 18, 1944, and on some other day before today, but we are not told when, Korematsu ceased to be precedential.)

4. As Eugene Volokh notes, Justice Thomas's critique of the issuance of national/universal injunctions makes extensive reference to Sam Bray's excellent article on the subject. And as Steve notes, there is a pending stay application in City of Chicago v. Sessions that looks like a good vehicle for the rest of the Court to decide what it thinks about the practice. (Two of the dissenters argue that a nationwide injunction was appropriate here, but on reasoning that might not extend to the sanctuary cities litigation.)

5. After this opinion, suppose President Trump used his Section 1182 authority to impose a unilateral ban on the entry of all aliens of any kind, perhaps with a stringent waiver process, and called the policy "I'm sorry you can't come in." Would that be legal? I very much hope not, but I am not sure.

[Cross-posted from Volokh.]

(SCOTUS Term) More on universal injunctions (Updated)

I agree with Stephen's post about Gill's foreshadowing of the demise of the universal injunction. Several additional points.

First, the standing analysis in Gill was tied to the nature of the right and the theory of the violation. We see that not only in the Chief's majority opinion, but in Kagan's concurring opinion guiding these and future plaintiffs on how to frame this as a First Amendment claim for which an all-state injunction may be appropriate. But this emphasizes the unavoidable and inherent connection between standing and merits, because the nature of the injury (and thus the permissible scope of the remedy) depends on the substantive right asserted. It is about time we follow Willie Fletcher on this.

Second, an all-state injunction ordering redistricting in a case such as Gill would not be universal, at least not as a formal matter. The injunction would have an unavoidable spillover effect to the benefit of non-parties--the government cannot redristrict to protect only the plaintiff. But the injunction still would protect only the plaintiffs in the case and only the plaintiffs would be able to enforce the injunction.

Third, if Stephen is correct that the next chance to consider universal injunctions is the stay request in Chicago v. Sessions, the result on the issue will be obvious because the universal injunction cannot be justified in Chicago. There are arguments that a universal injunction could be appropriate for the travel ban, given the large number of affected persons, their geographic dispersal, how easily they can move, and the use of third-party standing that made it impossible to identify specific injured persons (for example, Hawaii could not identify which people from the affected countries might want to travel to Hawaii to study or teach). But no such remedy is necessary in Chicago, because each city suffers its own injury by the denial of funding to it and each can bring its own lawsuit.

Update: A good post from Michael Dorf arguing that Thomas' critique of universal injunction is "ridiculous" because it focuses on antiquarian ideas of historic equity. It does not grapple with genuine arguments in favor of universality (conservation of resources) or the obvious solutions, such as Rule 23(b)(2) class actions.

SCOTUS Term: Bad News for the Universal Injunction

To follow up on Howard's post: one understated result of this morning’s travel-ban decision may be to hasten the demise of the universal injunction.

Ordinary injunctions protect the parties who obtain them. That can include class members, if the case involves a plaintiff class. But in recent years,  district courts have started to regularly award what Howard describes as "universal injunctions" (sometimes called "nationwide injunctions," or even "cosmic injunctions"). These binding orders regulate a defendant’s conduct even as to people who’ve never appeared in court—and, more importantly, who aren’t legally represented by those who did appear.

The travel-ban case involved just such an injunction. But because of the way it was brought, with the State of Hawaii able to advocate for the interests of various other persons, it would have made for a messy analysis. By disposing of the case on the merits, the Court ended up avoiding any detailed discussion of the injunction or its scope. (Justice Thomas discussed it at length in his concurrence—citing excellent work on the topic by Sam Bray, among others. And Justices Sotomayor and Ginsburg would have upheld the injunction, though I agree with Howard that the relevant footnote doesn't really explain why.)

So the next opportunity for the Court to reach the issue may be the government’s stay application in the sanctuary-city case. There, the City of Chicago sought and obtained an order forbidding the policy’s application to every locality in the United States. But without an order certifying a class, Chicago ordinarily doesn’t have the right to act as a legal representative for other cities—some of which might like the policy, or which simply might be indifferent. Chicago can sue to protect its own interests, but not to vindicate an abstract position on whether a policy is lawful, much less to obtain binding court orders about (say) the conditions on federal funding for Tampa. So the government has pressed the issue, asking the Court to stay only that portion of the sanctuary-city order which applies to other cities.

Which the Court might well do. As others have noted, the Chief Justice's opinion for the Court in the Gill v. Whitford redistricting case sounded plenty of relevant notes, in explaining why the Gill plaintiffs couldn't sue to reshape the state's legislative districts as a whole:

The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) (per curiam).

Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).

What's more, the Court rested this discussion on constitutional grounds:

Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.

If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries, then it's hard to see it upholding the universal injunction.

[UPDATE 6/27: Sam Bray summarizes new developments on the universal-injunction front. Among them, the Seventh Circuit has granted the government's stay request in the Chicago case, meaning that the stay application to the Supreme Court is now moot. (He also notes that the Seventh Circuit "refers to the injunction as 'STAYED as to geographic areas in the United States beyond the City of Chicago' [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.") ]

(SCOTUS Term) Thomas adopts universality, rejects injunctions

I may have more to say about Trump v. Hawaii later, but I wanted to start with Justice Thomas' concurring concurring opinion on scope-of-injunction. (The majority, having rejected the merits of the plaintiffs' argument, says it is unnecessary to reach that issue).

Thomas begins with a footnote adopting "universal" as the "more precise" term because the injunctions are distinctive because thet "prohibit the government from enforcing a policy with respect to anyone, including non-parties--not because they have wide geographic breadth." (Unfortunately, Thomas does not cite me for the nomenclature point). Instead, he relies heavily on Sam Bray's discussion of the history of equity and universal injunctions. He then rejects scholarly counter-arguments--protecting non-parties and constraining the executive--as not justified by historical limits on equitable and judicial power. He closes with "[U]niversal injunctions are legall and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so."

[Update: I should have included Justice Sotomayor's brief, conclusory discussion. She argues that given the nature of the Establishment Clause violation, a universal injunction was necessary to accord complete relief to the plaintiffs and was dictated by the extent of the violation established.]

SCOTUS Term: Extraterritorial remedies: How Far Will WesternGeco Go?

On Friday, the Supreme Court issued its opinion in WesternGeco v. Ion Geophysical Corp. The case involved a patent infringement claim. WesternGeco alleged that Ion Geophysical Corp. had manufactured component parts which it shipped overseas intending that they be integrated into a product for which WesternGeco held a US patent. The question before the Court was whether WesternGeco could recover damages for lost profits arising from sales of the product outside the United States, given the presumption against the extraterritorial application of U.S. statutes

                  In a 7-2 decision authored by Justice Thomas, the Court held that WesternGeco could indeed recover for the loss of profits from overseas sales. The Court held that it need not decide whether the presumption against extraterritoriality had been overcome (a difficult question that the Court acknowledged could have far-reaching effects) because “conduct relevant to the statutory focus in this case is domestic”—that is, the production of the component parts took place in the United States. Because the wrongful conduct took place within the US, the statute was not being applied extraterritorially.

                  Justice Gorsuch, joined by Justice Breyer, issued a dissenting opinion arguing that WesternGeco should not be allowed to recover for lost sales outside the US. The dissent pointed out that damages were being recovered for the foreign sales of the product—and those foreign sales did not themselves violate the U.S. Patent Act: “No doubt WesternGeco thinks it unfair that its invention was used to compete against it overseas. But that’s simply not the kind of harm for which our patent laws provide compensation because a U. S. patent does not protect its owner from competition beyond our borders.”

                  The Court’s decision is an interesting departure from its recent trend toward limiting litigation with foreign dimensions--a trend that Professor Pamela Bookman has called “Litigation Isolationism.” This decision potentially opens the door—at least a crack—to an increase in transnational cases. In allowing recovery based on foreign sales, Justice Thomas’s majority opinion criticizes the restrictive view held by Justices Gorsuch and Breyer, stating that the dissent’s “position wrongly conflates legal injury with the damages arising from that injury.” But of course, much litigation is driven by the possibility of damages—and this is doubly or triply true in transnational litigation, where the possibility of higher damages is a big part of what draws litigants to U.S. courts in the first place, “like a moth to the light.”

                  Going forward, the question will be how far the WesternGeco decision extends beyond its facts. Intellectual property lawyer Ronald Abramson has suggested that the logic of the decision is not “necessarily limited to patent damages,” and that it appears “to open up some more room for a full remedy for infringement (or other violation or tort), which addresses foreign consequences.” It remains to be seen whether the Court will in fact extend the decision in such a manner. Plaintiffs seeking a remedy for foreign harms caused by domestic action, however, will likely rely on WesternGeco’s rationale.  

SCOTUS Term: Teaching Carpenter v. United States

Because I teach criminal procedure but write mostly about the First Amendment (I do have some Fourth Amendment pieces), I read Fourth Amendment cases differently from First Amendment cases.  The Supreme Court's decision in Carpenter v. United States is exciting because it holds that government use of cell site data to determine a defendant’s location over a period of seven days is a search, requiring probable cause and a warrant.  Perhaps even more exciting, Carpenter promises to be a joy to teach.

There are so many reasons why Carpenter will be a great teaching case.  Skeptical (and anxious) students prefer precise answers to thorny legal questions, but also need to be pushed to recognize a case’s inherent ambiguities and open questions.  The majority and dissenting opinions give the reader snippets of clarity but also plenty of work to do to find coherence with underlying principles for future application.  The case also straddles the line between “third-party doctrine” cases, so it recruits line-drawing and analogical reasoning skills.   Plus, fundamentals of the doctrine are challenged by several Justices.  The different opinions grapple with the relationship between property and privacy, and the Court also wades into confused areas like the connection between the Fourth Amendment and the subpoena power.  This case has everything, even a lesson in cell phone technology!

Some of the most pedagogically interesting aspects of Carpenter:

1. The framework: Chief Justice Roberts rightly sticks to the Fourth Amendment framework of (1) is this a search and (2) is it reasonable. Plus, he affirms that Fourth Amendment searches generally require probable cause and a warrant to be reasonable.  His majority opinion even chides Justice Kennedy’s dissent for conflating the two questions (something students new to the Fourth Amendment also tend to do).  Kennedy believes that because the cell site data was obtained based on a subpoena of phone companies’ records, subject to judicial authorization, the probable cause standard need not govern this case.  But, if obtaining a defendant’s locations using cell site data is a search, invading a legitimate expectation of privacy, there’s little reason why the probable cause standard would not be required to render the search reasonable.     

2. The third-party doctrine: Most of the previous cases hold that information given to a third party is no longer private, and thus not a search protected by the Fourth Amendment.  (Your garbage on the curb is not even private, since children can rummage through it.)  Carpenter needed to be placed somewhere on the spectrum between Miller – which held that subpoenas of bank records are not a search because defendant had no legitimate expectation of privacy in information given to a third party (the bank) - and the notion that the government cannot subpoena Google for access to our email without probable cause.  The basis for The Chief’s majority holding here is not entirely clear, and neither is his distinction between location information and credit card transactions, which are not protected by the Fourth Amendment against subpoenas of credit card companies.  The majority seems to (1) find important that full-scale surveillance was disfavored during the Founding Era, (2) display a deep concern for the police’s increased ability to leverage technology to intrude upon people’s privacy (notice the multiple citations to Kyllo), and (3) rely on the fact that the location information subpoenaed was not part of a business transaction, unlike bank records and credit card information.  Under the majority’s explicit reasoning, the fact that information is given to a third-party affects whether a defendant has a legitimate expectation of privacy, but does not overcome serious privacy interests. 

3. The relationship between privacy and property: The majority opinion entirely decouples the privacy-based and property-based rules determining when something is a search.  Students can continue using either Katz (a search occurs when a legitimate expectation of privacy is invaded) or Jones (a search occurs when the government trespasses upon your property - you home, your stuff, your car).  These tests do not interact with each other under the majority’s reasoning.  Justice Kennedy’s dissent would have property-based rules inspire the Katz test, allowing for more interconnectedness between the two tests.  Justice Thomas, radically, would undo Katz’s hold on the doctrine entirely.  He lodges valid criticisms against Katz’s privacy framework.  Justice Gorsuch would relegate Katz to the margins and mostly use a Jones property-based theory (one he believes in actually rooted in “law”) and might also undo the entire third-party doctrine.

4. The subpoena power: The interaction between the subpoena power and the Fourth Amendment has been messy since the Court began undermining Boyd.  A subpoena is a “constructive search,” in that the police are not wading through a defendant’s home or effects, but that does not diminish a suspect’s Fourth Amendment privacy rights if those privacy rights exist (Justice Alito’s dissent takes issue with this).  Subpoenas of businesses generally need not comply with the probable cause standard because corporations have diminished privacy interests under the Fourth Amendment.  However, the subpoena of a business to obtain the private aspects of a person’s life requires probable cause and a warrant.  Justice Roberts’s majority opinion ensures that the administrative state’s increasing use of the subpoena power to bypass Fourth Amendment standards will not continue unchecked.  Justice Alito’s dissent, quite concerned with this opinion’s effect on the subpoena power, offers a nice history of compulsory process.

5. The major open question: What if the government had sought less than seven days’ worth of location information?  The Chief was not inclined to answer this question.

There is so much more to say about this case, but that’s exactly why it will be pedagogically rich.

(Cross posted on In a Crowded Theater.)

Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference (SCOTUS Term)

The headline administrative law opinion coming out of the Supreme Court yesterday was no doubt Justice Kagan's opinion for the Court in Lucia v. SEC, which held that administrative law judges at the SEC are [at least inferior] officers under the Appointments Clause and thus unconstitutionally appointed by agency officials who are not the head of the agency. SCOTUSblog is running a symposium on the case, including a great post by my colleague Peter Shane in which he coins the term "constitutional dodgeball" to describe the judicial minimalism at play in a number of decisions this Term.

It's also worth checking out Justice Thomas's concurrence, which cites extensively my Yale JREG co-blogger Jenn Mascott's Stanford Law Review article on the definition of "Officers of the United States." I like how Dave Hoffman put it on Twitter:

There's nothing but her work in that concurrence - they should've just said, for the reasons given by Mascott, we concur.

— Dave Hoffman (@HoffProf) June 21, 2018

In this post, however, I want to briefly flag two other decisions from yesterday that illustrate distinct, albeit not new, approaches to limiting the reach of Chevron deference.

First, we have Justice Gorsuch's "clear enough" approach. In Wisconsin Central Ltd. v. United States, a divided 5-4 Court held that employee stock options are not taxable “compensation” under the Railroad Retirement Tax Act because they are not “money remuneration.” In his dissent, Justice Breyer argued that the federal government had the better interpretation; if that interpretation wasn't the conclusive one, it should at least receive Chevron deference.

Justice Gorsuch, writing for the Court, found the statute unambiguous and contrary to the federal government's interpretation. To reach that conclusion, Justice Gorsuch had to look beyond the plain text of the statute, as the statutory text does not expressly say whether "for services rendered" includes stock options. Instead, Justice Gorsuch looked to the whole text, structure, and design of the statute. Or as he put it in rejecting Chevron deference, "in light of all the textual and  structural clues before us, we think it’s clear enough that the term 'money' excludes 'stock,' leaving no ambiguity for the agency to fill."

Justice Gorsuch's more muscular Chevron step one inquiry is not new. This was Justice Scalia's approach, and it has been adopted by a number of other textualist judges who seldom find statutes ambiguous. Most recently, Judge Kethledge (a SCOTUS shortlister) declared in the pages of the online companion to the Vanderbilt Law Review that in almost a decade on the Sixth Circuit he "personally [has] never had occasion to reach Chevron’s step two in any of my cases, there have been plenty of cases where the agency wanted us to." For the Scalia-Gorsuch-Kethledge textualists, it is par for the course to find statutes unambiguous at step one and thus not defer to an agency statutory interpretation.

Justice Gorsuch's framing of the step one inquiry as "clear enough" in Wisconsin Central may well affect how lower courts approach Chevron. This language reminds me a bit of Justice Ginsburg's "scant sense" exception to Chevron deference expressed in her 2015 opinion for the Court in Mellouli v. Lynch. Perhaps lower courts will interpret "clear enough" as more searching than "clear" or "unambiguous," thus narrowing the scope of Chevron deference in the circuit courts.

Justice Gorsuch's approach also reminds me of an observation by Judge Kavanaugh (another SCOTUS shortlister) in his Harvard Law Review book review about how different judges set different thresholds for finding clarity (at 2137-38, footnotes omitted):

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Perhaps the "clear enough" standard will encourage circuit and district judges to lower their thresholds for finding clarity closer to the 50-50 range, thus narrowing the scope of Chevron deference at step one.

Second, we have Justice Kennedy's concerns against "reflexive deference." In Pereira v. Sessions, the Court held that a notice to appear that does not include the time or place of the removal proceedings is not a statutory notice to appeal that would trigger the stop-time rule in the Immigration and Nationality Act. The Court refused to apply Chevron deference because it found the statute unambiguous.

Justice Alito was the sole dissenter, arguing that the case should be decided in the federal government's favor based on "an important, frequently invoked, once celebrated, and now increasingly maligned precedent, namely, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)." Justice Alito concluded that this is a run-of-the-mill Chevron deference case, where the statute is ambiguous and the agency's interpretation is reasonable. The only way to reach a contrary conclusion, Justice Alito concluded, is if "the Court has overruled Chevron in a secret decision that has somehow escaped my attention."

The headline-grabbing opinion from Pereira, however, was Justice Kennedy's solo concurrence, in which he added his voice to the judicial chorus for reconsidering Chevron deference. Justice Kennedy's concern is with how the doctrine "has come to be understood and applied," with "[t]he type of reflexive deference exhibited in some of these cases." Reconsideration of Chevron deference, for Justice Kennedy, would involve analyzing "the premises that underlie Chevron and how courts have implemented that decision." "The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers," Justice Kennedy explained, "should accord with constitutional separation-of-powers principles and the function and province of the Judiciary."

As my quotations from Justice Kennedy's concurrence hopefully underscore, I do not agree with those, like Joshua Matz, who believe Justice Kennedy is calling for Chevron's demise. Instead, I find myself agreeing more with Jonathan Adler and Jeff Pojanoswki, who view this call for reconsideration to be more about narrowing Chevron deference.

What would that narrowing look like? As opposed to Justice Gorsuch's more searching, "clear enough" step one, I'd expect Justice Kennedy to continue Chief Justice Roberts's narrowing project at Chevron step zero, first articulated in the Chief's dissent in City of Arlington v. FCC and further developed in the Chief's opinion for the Court in King v. Burwell. I view this as a context-specific Chevron deference, in which the reviewing court would focus more on the particular statutory ambiguity at issue and ask itself whether Congress would have really intended for that particular issue to be delegated to the agency for decision. To determine congressional intent to delegate by ambiguity, the court would consider the agency's expertise on the precise issue as well the issue's economic and political significance, among other factors.

As I have detailed elsewhere, this context-specific approach to Chevron deference finds some support in the empirical realities of how folks in Congress draft statutes and how officials at federal agencies draft regulations that interpret statutes. Such a narrowing also likely has the support five or maybe even six justices on the Court today.

In sum, yesterday's decisions in Wisconsin Central and Pereira articulate two different, though not mutually exclusive, avenues for narrowing Chevron deference. Justice Gorsuch's "clear enough" approach would encourage courts to engage in a more-searching inquiry at step one. Justice Kennedy's anti-"reflective deference" approach would likely lead to narrowing Chevron's domain at step zero. Neither would entail eliminating Chevron deference entirely.

Whether such narrowing of Chevron deference is a good thing is a discussion I'll save for another day.

SCOTUS Term: Stare Decisis and Judge-Made Law

One of this morning's more consequential Supreme Court decisions was South Dakota v. Wayfair, where the Supreme Court overruled its 51-year-old and 26-year-old decisions in Bellas Hess and Quill to hold that states may require out-of-state retailers to collect and remit sales tax. The decision was 5-4 (and as Jonathan Adler notes, with an unusual lineup), but interestingly all nine justices agreed that the original decision in Bellas Hess was wrongly decided. What they disagreed about was stare decisis -- should the prior decision stand? -- especially given the context of the Court's jurisprudence under the so-called "dormant" Commerce Clause.

Normally the Court adheres more strongly to precedent in cases of statutory interpretation than in constitutional cases because Congress can fix the Court's mistakes of statutory interpretation but can't fix the Court's constitutional mistakes. The dormant Commerce Clause -- under which the courts strike down state laws that improperly burden interstate commerce, unless Congress authorizes those laws -- is somewhere in between. It purports to be an interpretation of the Constitution, but it is still subject to revision by Congress. So what form of stare decisis should apply?

From the majority opinion by Justice Kennedy:

"Although we approach the reconsideration of our decisions with the utmost caution, stare decisis is not an inexorable command." Pearson v. Callahan, 555 U. S. 223, 233 (2009) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); alterations and internal quotation marks omitted). Here, stare decisis can no longer support the Court's prohibition of a valid exercise of the States' sovereign power.

If it becomes apparent that the Court's Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers in our federal system, the Court should be vigilant in correcting the error. While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court's proper role to ask Congress to address a false constitutional premise of this Court's own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response. It is currently the Court, and not Congress, that is limiting the lawful prerogatives of the States.

And from Chief Justice Roberts's dissent:

I agree that Bellas Hess was wrongly decided, for many of the reasons given by the Court. The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." Ante, at 18. But that is the very reason I oppose discarding the physical-presence rule. Ecommerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress. The Court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago. ...

This Court "does not overturn its precedents lightly." Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 15). Departing from the doctrine of stare decisis is an "exceptional action" demanding "special justification." Arizona v. Rumsey, 467 U. S. 203, 212 (1984). The bar is even higher in fields in which Congress "exercises primary authority" and can, if it wishes, override this Court's decisions with contrary legislation. Bay Mills, 572 U. S., at ___ (slip op., at 16) (tribal sovereign immunity); see, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8) (statutory interpretation); Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. ___, ___ (2014) (slip op., at 12) (judicially created doctrine implementing a judicially created cause of action). In such cases, we have said that "the burden borne by the party advocating the abandonment of an established precedent" is "greater" than usual. Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989). That is so "even where the error is a matter of serious concern, provided correction can be had by legislation." Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)).

We have applied this heightened form of stare decisis in the dormant Commerce Clause context. Under our dormant Commerce Clause precedents, when Congress has not yet legislated on a matter of interstate commerce, it is the province of "the courts to formulate the rules." Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 770 (1945). But because Congress "has plenary power to regulate commerce among the States," Quill, 504 U. S., at 305, it may at any time replace such judicial rules with legislation of its own, see Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 424–425 (1946).

I found this debate interesting in its own right, but also because I wondered what it implies about other judge-made doctrines that might hit the Court's docket in the future. For instance, some scholars (including Joanna Schwartz, and me) have critcized the Court's doctrine of qualified immunity from suits for constitutional violations, a doctrine created by the Court in the second half of the twentieth century. Others, such as co-participants Aaron Nielson and Chris Walker have defended that doctrine on stare decisis grounds, and argued that the Court should leave any correction of the doctrine to Congress.

A few recent cert. petitions have asked the Court to reconsider the doctrine, and the Court has called for a response in at least two of them, Spencer v. Abbott and Allah v. Milling. It struck me that this same debate might play out again in that context. Perhaps members of the Wayfair majority will be more likely to be willing to reconsider qualified immunity if they agree that it is a "false ... premise of th[e] Court's own creation" and one in an area where "[c]ourts have acted as the front line of review." (Indeed, one member of the majority, Justice Thomas, has already expressed his interest in reconsidering the doctrine.) By contrast, perhaps members of the Wayfair dissent will be more likely to insist that the Court should not be the one "to expiate a mistake it made over 50 years ago." (Though one member of the dissent, Justice Sotomayor, signalled at least some concerns about the doctrine in a recent dissent.)

And now that I think about it, some of the same analogies could be made in the debate about whether to limit Chevron ...

[Cross-posted with a few edits from Volokh.]

SCOTUS Term: Finding the Law, Abroad and at Home

Thanks to Howard for the invitation to blog! Amid the morning’s excitement over new opinions, I’d like to add a few thoughts to Cassandra Burke Robertson’s excellent post last week on Animal Science Products v. Heibei Welcome Pharmaceuticals. Animal Science is a sleepy case in a mostly sleepy Term, but it brings up some deep issues, much deeper than the Supreme Court usually faces: what is the law, and how do judges find it?

Animal Science involved a price-fixing claim about Chinese exports of Vitamin C. The defendants said they’d been legally required to fix their prices, and China’s Ministry of Commerce agreed. To the Second Circuit, this was enough: so long as the Ministry’s position was reasonable, it was conclusive. (How could an American court instruct China’s government about Chinese law?) But to a unanimous Court, per Justice Ginsburg, the Ministry’s statement deserved only “respectful consideration”: it wasn’t binding, and U.S. courts would have to make their own judgments.

That all makes sense on the surface, but it raises at least three more fundamental concerns. Are legal questions like these all that different from ordinary questions of fact? Who do we trust to answer them? And what actually makes the answers right? When it comes to foreign law, issues like these aren’t always obvious—suggesting that the answers may not be so easy closer to home.

1. Legal questions and questions of fact. As the Court points out in Animal Science, foreign laws used to be treated as facts—they had to be pleaded and “proved as facts,” subject to rules of evidence and based on expert testimony or authenticated documents. As it turns out, these same rules applied to U.S. states—which were just as foreign to one another, except when the Constitution or Congress intervened, and which therefore needed proof of each other’s laws. (As I’ve argued before, the Full Faith and Credit Clause was mostly about these evidentiary questions: it helped establish what a particular state had said, and left it up to Congress to decide when other states should listen.) Sometimes even a state’s own laws got the factual treatment: courts could take judicial notice of public laws, but private bills were again matters for pleading and proof, as Chief Justice Marshall described:

“The public laws of a state may without question be read in this court; and the exercise of any authority which they contain, may be deduced historically from them: but private laws, and special proceedings of the character spoken of, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner.”

Today we do things very differently. Federal and state courts take judicial notice of all kinds of American laws, and FRCP 44.1 and various state equivalents let them do the same for foreign ones. But we haven’t eliminated the basic problem of proving the law. Knowing that judges should answer these questions on their own—without simply outsourcing to juries, rules of evidence, or Ministry statements—doesn’t help us find any particular answers. If we need to know, say, whether French law allows extrinsic evidence of the contracting parties’ intent, should we look to translations of the statute book? To treatises and journal articles? To testimony by experts? And which translations, treatises, or experts should we trust?

2. Who do we trust? Giving only “respectful consideration” to the Ministry suggests that we should be sparing with our trust—making an all-things-considered judgment, looking at all the potential legal sources at once. But according to the Court, at least one kind of source gets special treatment. When a U.S. state court rules on an issue of state law, that ruling doesn’t just get “respectful consideration”; it’s considered as “binding on the federal courts.”

Why so? It’s easy to explain why federal courts might defer to Ohio courts on Ohio law, just as the Second Circuit would usually defer to the Sixth—they see more Ohio cases, so they probably know what they’re doing. But that doesn’t explain why the decisions would be binding, as opposed to just getting  extra-respectful consideration.

Maybe there’s something special about common-law courts. Maybe we might say, with Hale, that the decisions of our courts might be “less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.” (When it came to the construction of “local statutes or local usages,” Justice Story in Swift v. Tyson would have agreed.) But that’s very different from claiming, as Justice Holmes later did, that whenever a state creates a supreme court it’s really creating a junior-varsity legislature, “as clearly as if it had said it in express words.” Some states might want their courts to establish the law of the state, but others might not. Georgia might want its courts to do general common law; Louisiana might want its courts to do its own civil-law thing; Canada, were it admitted as a state (as the Articles of Confederation once offered), might have its own apologetically polite take on the separation of powers. And if a legal system turns out to be very different from ours—say, with a complex network of informal councils and regional magistracies—we might have no idea which entities even count as its courts, let alone how much “respectful consideration” they’re supposed to be getting.

As I note in a draft paper on Finding Law, that’s one of the core problems with the Court’s notorious decision in Erie Railroad Co. v. Tompkins. Instead of looking to a state’s law to learn about its courts, Justice Brandeis did precisely the opposite—assuming, for bad theoretical reasons, that the law of a state is what the state courts say it is, because that’s just what courts get to do. But American courts don’t establish Chinese law when they decide cases like Animal Science. And they don’t necessarily establish American law when they decide their other cases, either. The powers of courts aren’t facts of nature, but society-specific questions on which different legal systems can disagree.

3. What makes the answers right? If courts can sometimes get the law wrong, what does it mean to get it right? How can we disbelieve the Chinese government about Chinese law, if Chinese law is just whatever the Chinese government actually does?

As Asher Steinberg points out in the comments, in some societies (like Venezuela or the former Soviet Union), government officials don’t always adhere to formal legal sources. Maybe these particular defendants’ hands were forced by Chinese law; but maybe the Ministry officials just issued them orders, the statute-books be damned. If that’s what the officials did, and if law depends on what officials do, then maybe their secret commands really were the law. (Here Steinberg invokes a great paper by Mikołaj Barczentewicz, to which Will Baude and I are currently at work on a reply.)

But law is more than what legal officials do. If the defense in the case were just ordinary duress, it wouldn’t matter whether the threats were backed by legal force (or whether, say, Al Capone had told them to fix prices for Vitamin C). Instead, the defense cited “principles of international comity,” which we usually extend to foreign governments as they’re legally constituted, and not to rogue officials on a frolic of their own. If the officials were supposed to be able to order price-fixing, under some applicable statute or common-law doctrine, then it wouldn’t matter so much if their order were secret or open. But if not—if the officials were departing from what everyone else in the Chinese system (judges, experts, law schools, and so on) would describe as Chinese law—then it’s hard to say that what they were doing was really lawful. That’s why we speak of places like the USSR as having had problems with the rule of law: because in those societies, the law wasn’t always what ruled. As far as diplomacy goes, we might want to respect official actions merely under color of law, just to avoid annoying the officials with whose governments we negotiate. Yet we still shouldn’t confuse official actions with the law—either abroad or at home.

(SCOTUS Term): Trusting adjudicators on remand

The Court on Thursday decided in Lucia v. SEC (link corrected) that SEC ALJs were officers of the United States rather than employees and that the appointment of ALJ's by SEC staff (rather than the SEC itself) violated the Appointments Clause. Justice Kagan wrote for herself, the Chief, Kennedy, Thomas, Alito, and Gorsuch. Thomas concurred, with Gorsuch. Breyer concurred in the judgment in part, agreeing that the ALJ in this case was not properly appointed, but for statutory rather than constitutional reasons. Sotomayor dissented on the constitutional question, joined by Ginsburg.

I want to focus on the issue of remedy in the case. The Court remands for a new hearing on the charges against Lucia (involving alleged deception of prospective clients). But it insists that the new hearing cannot be before the same ALJ; it must be before a different (properly appointed) ALJ or the SEC itself. The original ALJ "has already both heard Lucia's case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before." Appointments Clause remedies are intended to incentivize parties to bring Appointments Clause challenges; a party has no incentive to bring the challenge if the remedy is a new hearing before the same adjudicator, properly appointed. Because there was no suggestion the ALJ erred on the merits, he can be expected to reach the same result from hearing the same case. Breyer dissented on this point (and Ginsburg and Sotomayor joined that portion of his opinion). He compared reversal on appeal, where the same judge typically rehears the case on remand. And because this reversal was on a "technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings," neither due process nor the structural purposes of the Appointments Clause would be violated by the same ALJ rehearing the case.

The competing approaches reflect a paradox. For Kagan, the fact that the judge was not criticized or corrected on the merits shows that he cannot be trusted to hear the case anew, because his views on the merits will not have changed and no new or different evidence or arguments on the merits cause him to change those views. Implicitly, a decision criticizing the original decision or requiring something new forces him to reconsider those merits, whether to correct the original error or because the new information is convincing. Breyer's approach, on the other hand, presumes that a judge criticized on the merits might be put-off by the reversal (lower-court judges do not believe they were "wrong" even though a reviewing court disagreed with their decision) and more dug-in to his original position. If we trust that judge rehear that case on remand, we should trust a judge in this situation.*

[*] Marcus, Redish, Sherman, and Pfander, the Civ Pro book I previously used, included in the Discovery chapter a defamation action against Diana Ross by a former employee. The district court had dismissed the case on 12(b)(6), but the Second Circuit had reversed. The case back before the same district judge in discovery, every discovery decision went against the plaintiff and in favor of Ross, which can be seen as at least influenced by the judge's previously established views on the merits.

Kagan's approach raises the question of what other "structural" errors might be similar to an appointments problem as to require rehearing by a different judge. Denial of counsel comes to mind, although the assumption is that proper counsel will present evidence and arguments that the pro se party failed to present, changing what is available on the merits and requiring the judge to think about the merits differently. Another possibility is routine shackling in Sanchez-Gomez; if the reviewing court says this defendant should not have been shackled, it does not criticize the trial judge on the merits of any decision she made against the defendant, so that judge would be expected to reach all the same judgments.

SCOTUS Term: Chavez-Mesa and Sentencing Appeals

Yesterday, Supreme Court decided another federal sentencing case, Chavez-Meza v. United States. In 2013, the defendant pleaded guilty to possession of methamphetamine with the intent to distribute and he was sentenced to 135 months in prison.  That sentence was at the very bottom of the relevant Federal Sentencing Guideline range.  After the defendant’s sentencing, the U.S. Sentencing Commission reduced the relevant sentencing guideline range from 135-168 months to 108-135 months.  The defendant sought a resentencing under the new, lower range.  The judge agreed to lower his range, but imposed a sentence of 114 months, rather than the 108 month sentence the defendant had requested.  The judge did not provide any explanation for the new sentence.  Instead, the judge merely checked a box granting the motion for a sentencing reduction on a form that stated that the judge had considered the defendant’s motion and taking into account the relevant Guideline’s policy statement and statutory sentencing factors.  (A copy of the form can be found at the end of the opinion.)

The defendant was entitled to appeal his new sentence, and he did.  Sentencing decisions are subject to abuse of discretion review on appeal, and so one might wonder how the appellate court was supposed to review the defendant’s sentence without any explanation for the judge’s decision.  As Judge Posner put this point in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)

[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored.

But in a 5-3 decision, the Supreme Court Justices nonetheless affirmed the sentence in this case.  Writing for the majority, Justice Breyer failed to explain how an appellate court is supposed to conduct abuse of discretion review if there is no explanation of a lower court’s decision.  Instead, he pointed to the Court’s decision in a prior case which had affirmed a sentence that was supported by nothing more than the sentencing judge’s statement that the within-Guidelines sentence it imposed was “appropriate.”

I have no doubt that if this sentence had been outside of the Guidelines, then a majority of the Court would have said that an explanation was absolutely required. But instead we see this from the majority:

[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender. Thus, a judge's choice among points on a range will often simply reflect the judge's belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in § 3553(a). Insofar as that is so, it is unsurprising that changing the applicable range may lead a judge to choose a nonproportional point on the new range. We see nothing that favors the one or the other. So, as is true of most Guidelines sentences, the judge need not provide a lengthy explanation if the “context and the record” make clear that the judge had “a reasoned basis” for reducing the defendant's sentence.

I think this may be the most blatant statement from the Court that we need only subject non-Guidelines sentences to appellate review.  Previous decisions had been more circumspect about the idea that within-Guidelines sentences ought to receive essentially no appellate scrutiny.  The Court’s decision to overtly embrace the idea in Chavez-Meza was not accompanied by any real attempt to reconcile differential appellate review with the holding in United States v. Booker, which rendered the Federal Sentencing Guidelines “advisory” in order to protect them from Sixth Amendment challenge.

What is more, the idea that the Federal Sentencing Guidelines represent what most judges think is an appropriate sentence is demonstrably false.  (See pages 1490-91 of this article and pages 6-14 of this article for thorough explanations of why that statement is false.)  As one of the original members of the U.S. Sentencing Commission, Justice Breyer knows that this statement is false.  And he knows that the statement is especially untrue when it comes to sentencing ranges for drug crimes.

Chavez-Meza v. United States is yet another demonstration that the Supreme Court has utterly abandoned appellate review principles in its post-Booker sentencing cases. 

(SCOTUS Term): Deciding little, deciding few, and competing judicial functions

I had thoughts similar to what Dahlia Lithwick and Eugene Volokh argue. This Court does not want to decide substantive constitutional issues--to make constitutional law--that can guide lower court, other branches and governments, and the public. In addition to the standing punt in Gill (which retains the gerrymandered status quo, so it is not a neutral result), Volokh points to Tuesday's decision in Lozman and last week's decision in Masterpiece as examples of the Court failing to resolve the tricky substantive issues presented in the cases. The acid test will be whether the Court does something similar with the travel ban. (Eugene also mentions Janus, although the outcome in that case is so over-determined, it feels like waiting for the inevitable).

The wisdom of so-called minimalism or reliance on "passive virtues" or what Dahlia derides as the Chief fearing political criticism must be measured against the Court's shrinking docket. The Court will decide fewer than 70 cases this Term. And the cases it decides will not have the long-term prospective effects that we expect from a Court of last resort working with an almost-entirely discretionary docket. The nature of that docket focuses the Court on its rulemaking, as opposed to its error correction, function. So what is the Court doing and how does it see its role?

On the rulemaking/error-correction line: We might think of Lozman and Masterpiece as failures of discretionary case selection, creating confusion between those competing roles of the Court. In both cases, the Court realized it had the wrong vehicle for resolving the core constitutional issue. Neither case presented the paradigm case for the supposed legal issue. And both had unique features that allowed for narrow resolution of the case at hand (in other words, correcting lower-court error) while providing little general guidance (rulemaking).

(SCOTUS Term): Behold the passive virtues

The Court had not one but two shots at partisan gerrymandering this term. And those chances included limiting (if not avoiding) charges of political bias, because both sides oxen were being gored--one case was Republican gerrymandering to screw Democrats and one case was Democratic gerrymandering to screw Republicans. Alas, the Court punted in both.

Gill v. Whitford, the Republicans-screwing-Democrats case from Wisconsin, was the higher-profile. The Court unanimously rejected the case on standing grounds. The Chief's opinion (joined by everyone at least in part) emphasized the individual nature of the standing inquiry in a vote-dilution case--each plaintiff must show the injury she suffered to her vote in her gerrymandered district, without regard to the makeup of any other district or the statewide balance of partisan power. The Court remanded to give the plaintiffs an opportunity to plead and offer evidence of standing, although Justices Thomas and Gorsuch did not join this part. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor (but not Kennedy), concurred to provide a roadmap for how plaintiffs can establish standing on a vote-dilution theory. This may include statewide evidence of harm to plaintiffs in districts throughout the state warranting a statewide remedy to relieve the injury to plaintiffs in multiple districts (on the assumption that the case include plaintiffs from all or most districts). Kagan also mapped how plaintiffs, including a political party, could establish standing on a First Amendment association theory, which by definition focuses on statewide harms.

Benisek v. Lamone was the Democrats-screwing-Republicans case from Maryland and was framed as lower stakes, focusing only on vote dilution in one district and not seeking to combat systemic statewide gerrymandering. Standing was not an issue. But the Court in a per curiam held that the  non-merits elements of the preliminary-injunction analysis were not satisfied, including the public interest and balance of equities.  The Court emphasized plaintiffs' delay in seeking an injunction and the impossibility, if the current map cannot be used, of drawing a new map that could be used in 2018.

Hasen points out that a third partisan gerrymandering case awaits the Court decision on whether to assert jurisdiction that includes a free-association challenge to explicit statewide partisan districting. But the case has similar standing concerns. We will see on remand how much mileage plaintiffs can get from Kagan's concurrence.

The analysis in Gill shows how inextricable standing is from the merits in constitutional litigation, especially seeking systemic mandatory injunctive relief. So inextricable that it confirms William Fletcher's view that standing is merits and lack of standing the failure of a claim. Gill shows this in two respects. First, it shows that the separation of injury and right makes no sense, because the injury depends on the right and the theory of right asserted. Second, the problem as to several plaintiffs was not the early allegations of injury but the failure to provide evidence at trial of that injury. But standing is supposed to be a jurisdictional threshold issue. If we are still arguing about it at trial, we are passed the threshold, so we should consider this as part of the substantive merits at trial.

The other point of note is the Chief's efforts to limit the prospective effect of Kagan's concurrence. On p. 17, he writes: "[T]he opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others . . . The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other."

 

SCOTUS Term: Beckles v. United States As Anti-Canon

A little more than a week ago, Carissa Hessick wrote a PrawfsBlawg post about the Supreme Court’s decision in Hughes v. United States.  Hughes decided whether a defendant who entered a “Type C” plea agreement could have his or her sentence reduced after the U.S. Sentencing Commission retroactively reduced the defendant’s Sentencing Guidelines range under the federal Sentencing Guidelines.  Hughes answered that question in the affirmative because “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

In her post, Carissa noted that Hughes largely ignored the Supreme Court’s earlier decision in Beckles v. United States, which held that the Sentencing Guidelines are not subject to vagueness challenges.  Beckles reached that conclusion on the ground that defendants’ sentences are not really affected by the Sentencing Guidelines, since district courts are not required to sentence defendants within the ranges provided for by the Sentencing Guidelines.  In other words, defendants’ sentences are not really dictated by (or, one could say, based on) the Guidelines after all.

I joked that Carissa’s post should have actually been titled “Beckles v. United States As Anti-Canon.”  After today’s sentencing opinions, I decided to write that post up myself.

Today’s first sentencing opinion is Chavez-Mesa v. United States.  In Chavez-Mesa, the Court determined whether a district court’s form order in a sentence reduction proceeding was sufficient to allow for meaningful appellate review of a defendant’s sentence.  The Court basically said that it was.  Importantly, the Court rejected the government’s suggestion that district courts have no obligation in sentence reduction proceedings to explain their chosen sentences, as they do in original sentencing proceedings.  Rather, the Court held that, assuming district courts have  the same obligation, the district court’s explanation on this record was sufficient to allow for meaningful appellate review.

The Court then said the following:

[T]he Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender.  Thus, a judge’s choice among points on a range will often simply reflect the judge’s belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in §3553(a).

In other words, the mere fact that a defendant’s sentence is within the guidelines range suggests the district court considered the sentencing factors under section 3553(a).  That proposition makes within-Guideline sentences more difficult to challenge on appeal than outside-Guideline sentences.  It thus solidifies the role of the Guidelines in federal sentencing and also gives district courts an incentive to sentence within the guidelines range, since those sentences would be harder to disturb on appeal. It provides another procedural mechanism that will make defendants’ sentences “based on” the Sentencing Guidelines, which Beckles said they were not, thus undermining Beckles in the process. (The Court in Chavez-Mesa also pointed to the district court’s original explanation in the original sentencing proceeding, and the court’s statement that he had considered the pertinent factors in the sentencing reduction proceeding.)

Today’s second sentencing opinion is Rosales-Mireles v. United States.  In Rosales-Mireles, the Court rejected the Fifth Circuit’s standard that a defendant must demonstrate that an error “shock[s] the conscience” in order to establish that an error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” (A defendant must show that an error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,” in order to obtain relief under the “plain error” standard, which applies to errors on appeal the defendant did not previously raise.) Instead, the Court held that “A plain Guidelines error that affects a defendant’s substantial rights is precisely the type of error that ordinarily warrants relief under Rule 52(b).”

Why is a “plain Guidelines error … precisely the type of error that ordinarily warrants relief under Rule 52(b)”? The Court said it is because “an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than ‘necessary’ to fulfill the purposes of incarceration.” In plain English: Guidelines ranges affect defendant’s sentences, and an error in the length of a sentence affects the fairness of judicial proceedings.  Here too, the Court is underscoring that Guidelines shape, if not dictate, defendant’s sentences, further undermining Beckles in the process. 

The dissent underscores that tension even further. The dissent would have held that an error in a defendant’s guidelines range does not affect the fairness or integrity of the judicial proceedings because the guidelines do not control defendants’ sentences.   To support that proposition, the dissent said this:

But the Guidelines are not “law.” They neither “define criminal offenses” nor “fix the permissible sentences for criminal offenses.”  Beckles v. United States.

(The author of the dissent was also the author in Beckles.)

The whiplash in the Court’s federal sentencing cases is wild.  You have Peugh v. United States, which held that the Guidelines are subject to the Ex Post Facto Clause because they have such substantial force over a defendant’s sentence.  Then you have Molina-Martinez v. United States, which held that a Guidelines error will almost always affect a defendant’s substantial rights, again because the Guidelines have such substantial force over a defendant’s sentence.  Then you have Beckles v. United States, which held that Guidelines are not amenable to vagueness challenges because they do not really establish defendants’ sentences. And today you have Chavez-Mesa, which made it more likely that the Guidelines would substantially affect defendant’s sentences, and Rosales-Mireles, which recognized that they already do.

One of these things is not like the others. That thing is Beckles v. United States.  A purely advisory Sentencing Guidelines system might very well not be subject to vagueness challenges.  But that’s not the Sentencing Guidelines system that we have, as the Court reminded us today (and reminds us most days).

Cross-posted at Take Care.

(SCOTUS Term): Municipal gadflies on a busy day at SCOTUS

SCOTUS resolved five cases on Monday. This included the partisan-gerrymandering cases (about which, more later), while leaving unresolved many critical doctrinal questions.

Monday's haul included Lozman v. Riviera Beach, a victory of sorts for a local gadfly. Lozman was arrested (on later-dropped charges) in November 2006 while attempting to speak at the public-comment portion of a City Council meeting. The case was briefed and argued on the proper standard for First Amendment retaliatory arrest claims: Whether probable cause to arrest on some charge defeats the claim or whether courts must consider whether the officer would have arrested the plaintiff even absent his speech.

An 8-Justice majority resolved the case on different terms, as an unusual and narrow retaliation case. Lozman had not sued the arresting officer and he did not claim a First Amendment violation from the officer stopping him from speaking at the November 2006 meeting. Lozman sued the city, alleging that council members (one in particular) enacted a policy to retaliate against him for his pre-November 2006 expressive activity, including critical public statements and filing a state open-records action; the arrest effected that policy. That made this case unique and uniquely problematic. Retaliatory policies, as opposed to ill-motivated officers making ad hoc decisions, are a "particularly troubling and potent form of retaliation" for which a First Amendment claim is the only remedy (whereas a plaintiff could have an individual disciplined or fired--although neither happens). Probable cause plays no role in such a case, because the arresting officer's immediate concerns at the time of arrest are unrelated to the policy targeting past speech. Finally, the policy targeting high-value petition activity.

Lozman's road remains difficult, as he must show that the Council members established a policy, that the policy was retaliatory (that it would not have been established but-for his expression), and that the arrest was pursuant to that policy--all issues on which courts are notoriously stingy. The road for similarly situated future plaintiffs to take advantage of this decision remains more difficult. Lozman had the advantage of a transcript of a closed-door Council meeting at which members spoke in retaliatory terms; most plaintiffs will not be so fortunate. In essence, the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.

SCOTUS Term: Figuring Out Foreign Law

Today’s Supreme Court decision in Animal Science Products v. Hebei Welcome Pharmaceuticals holds that federal courts need not give conclusive deference to a foreign government’s amicus filing explaining its own law. Although the Court concludes that federal courts should “carefully consider a foreign state’s views about the meaning of its own laws,” it also states that courts should consider “other relevant materials,” and should consider the foreign sovereign’s statements in light of “the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”

The Court’s unanimous opinion is a rare win for class-action plaintiffs, who had filed suit an antitrust action against Chinese exporters of Vitamin C, alleging that the exporters engaged in price-fixing. The defendants had argued that they were shielded from liability because their pricing arrangements were mandated under Chinese law, a position that the Chinese government confirmed in an amicus filing. The plaintiffs argued that the defendants’ (and Chinese government’s) position was contradicted by statements that China had made to the WTO. The district court agreed, but the Second Circuit held that the court erred by failing to give conclusive deference to the Chinese government’s statement of its own law.

The Supreme Court’s decision that a foreign government’s statements should be given respectful consideration but not conclusive deference seems quite clearly right to me. An amicus brief from professors of conflict of laws and civil procedure points out that the Supreme Court’s holding comports with the expectations of most countries; most nations do not give conclusive deference to foreign statements in filed cases, and leading international agreements expressly allow courts to consider foreign sovereign government’s statements about their own law without being bound by such statements.

But even if the decision is right in the abstract, I believe it should be a rare case in which a court’s “respectful consideration” of a foreign sovereign’s statement of its own law reaches a different decision. In this case, the district court concluded that the Chinese government’s statement was inconsistent with its earlier actions. An amicus brief filed in the Supreme Court by the Chinese Ministry of Commerce attempts to reconcile the seeming inconsistencies, bolstering the defendants’ argument that they lacked independent pricing power. On remand, the Second Circuit can certainly consider these arguments. As the Supreme Court pointed out in its opinion, questions of foreign law have been recognized as questions of law rather than fact ever since the adoption of FRCP 44.1 in 1966. As a result, the Second Circuit is not bound by the district court’s conclusion about the defendants’ ability to set their own prices. If the Second Circuit on remand agrees that the defendants' pricing strategies were required by Chinese law (a question explicitly left open by the Supreme Court), then the class-action plaintiffs' victory may be short-lived.

(SCOTUS Term): Court rejects ban on political apparel in polling places

Although it did not deal with compelled speech on the anniversary of Barnette, the Court did knock out one of its free-speech cases--Minnesota Voters Alliance v. Mansky. The Chief wrote for seven Justices, declaring invalid a state law prohibiting "political badge, political button, or other political insignia" being worn "at or about the polling place."

The polling place is a nonpublic forum and the statute was viewpoint neutral. But it was not reasonable. The word "political" is undefined. It is broader than "campaign" (a category dealt with in a different, unchallenged provision), but its scope remains uncertain and is not clarified by various administrative-guidance policies, which offer examples that appear contradictory. Roberts argued this "poses riddles that even the State's top lawyers struggle to solve," citing to the extensive, inconsistent hypotheticals the Court peppered counsel with during argument. That uncertainty also vested too much discretion in the election-day judges, who cannot know all the "issues" that might be reflected by a piece of apparel.

The sort of parsing for over- or under-inclusiveness that the Court does here typically is part of strict or intermediate scrutiny, rather than reasonableness. But the result makes sense, as a word like political is seemingly boundless. And the Court remained at least nominally deferential of the state's interest in making the polling place a space of calm reflection and cited approvingly to narrower laws in other states (Red and Blue) aimed at the same goal.

Justice Sotomayor dissented for herself and Justice Breyer, arguing that the Court should certify to the question of the statute's precise meaning to the Minnesota Supreme Court. The Chief dropped a footnote to reject certification, emphasizing the discretionary nature of certification, the lateness of the state's suggestion of certification in the litigation, that the state had offered an interpretation for the Court to use in the case, and that there is no obvious alternative interpretation that the state court might adopt.

This is the second time in two Terms that Sotomayor has argued for certification to avoid a First Amendment decision (Justice Alito joined her prior attempt). It is interesting that Court has stated that certification (like Pullman abstention, the doctrine it arguably supersedes) should be used sparingly in First Amendment cases, given the chilling effect caused by delays in the certification process.

(SCOTUS Term): Barnette at 75

Today marks the 75th anniversary of W. Va. Bd. of Educ. v. Barnette, which John Q. Barrett commemorates at his blog on all things Justice Jackson. Barnette must be among the Top 5 most important SCOTUS First Amendment decisions and one of the first to combine soaring free-speech rhetoric with a victory for the free-speech claimants. The decision remains relevant to modern free-speech controversies, between controversies over flag-related speech and new concerns over compelled expression. Two cases from OT17 implicated Barnette and compelled speech--Masterpiece Cakeshop although only Justice Thomas, citing Barnette, took the free speech route, and NIFLA v. Becerra, a pure compelled speech case that will certainly rely on Barntte. NIFLA is still out, although it would be ironic if the Court issued that case today.

The anniversary also gives me a chance to publicize the FIU Law Review Symposium, Barnette at 75, hosted at FIU on October 5, 2018. Panelists include John Q. Barrett (St. Johns), Ronald Collins (Washington), Erica Goldberg (Dayton), Abner Greene (Fordham), Paul Horwitz (Alabama), John Inazu (Wash U.), Leslie Kendrick (Virginia), Genevieve Lakier (Chicago), Aaron Saiger (Fordham), Seana Shiffrin (UCLA), Steven Smith (San Diego), and Brad Snyder (Georgetown).

SCOTUS Term: The Disappearing Class Action, But a Nod to Legal Scholarship

In today's decision in China Agritech v. Resh, the Supreme Court ruled that the filing of a class-action suit that is later dismissed on non-merits grounds does not equitably toll the statute of limitations for future class actions. Thus, when the class action fails--whether for lack of adequate representation or some other reason-- individual litigants may file their suits after the putative class action is dismissed, but a successive class action may not be filed when the statute of limitations has run. As Ronald Mann mentions over at SCOTUSBlog, the result in this case was not surprising. The Court has been highly skeptical of class-action practice in general, and extending an equitable-tolling rule to protect future class actions was always going to be a long shot.

However, it is nice to see that Justice Ginsberg's majority opinion and Justice Sotomayor's concurrence very thoughtfully engage with legal scholarship from civil procedure scholars. Both opinions discuss Rhonda Wasserman's influential article Dueling Class Actions, 80 B. U. L. Rev. 461 (2000), and the majority also cites to Tanya Pierce's excellent article, Improving Predictability and Consistency in Class Action Tolling, 23 Geo. Mason L. Rev. 339 (2016). The Court also relied on empirical work by Emery Lee and Thomas Willging at the Federal Judicial Center  and cited to Elizabeth Cabraser & Samuel Issacharoff, The Participatory Class Action, 92 N. Y. U. L. Rev. 846 (2017).  Although I am persuaded that Tanya's recommended approach would have been preferable to the one ultimately adopted by the Court, I appreciate seeing the Court engage with work of civil procedure scholars.

SCOTUS Term: Marks All the Way Down, and the Importance of Conceptual Legal Puzzles

I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.

I have previously written (on my own blog) about the meta logic of Hughes v. United States.  In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision.  (Here’s an example of the 4-1-4 prior opinion at issue in Hughes.)  According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.”  Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning. 

Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on.  What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions?  This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.

For example, let’s say Justice Sotomayor believed that the “narrowest opinion” is the one proffered by the largest number of Justices concurring in the judgment.  Then, if Justice Sotomayor’s holding about the meaning of Marks is considered the narrowest opinion, her holding is not considered the narrowest opinion – and we would look to how the 4 reasoned through Marks.  Further, if Justices Kagan, Breyer, Ginsburg, and the Chief wrote the plurality holding that the Marks narrowest opinion is the one that commands the most Justices of the Court, including dissents, that reasoning could lead to not accepting their rationale, if one initially accepts their rationale.  It’s just Marks all the way down.

In writing this blog, I pondered whether we should continue to spend much time ruminating on these excellent conceptual legal puzzles, in an era where asylum seekers are being separated from their families, school shootings dominate the news, and the real, practical stakes of our political strife are significant and pressing.  I continue to believe that rule of law requires formal, abstract thinking about cases, divorced from the result.  These sort of puzzles remind us to keep reasoning markedly distinct from result, and they help hone our analytical skills so we can develop a coherent body of law that enhances legal legitimacy.  I’d be interested to hear other thoughts on this issue.

(Cross posted at In a Crowded Theater.)

SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop

I was on the road when Masterpiece Cakeshop came down on Monday and had time for a Twitter reaction but not for a blog post. Suffice it to say, I wasn’t impressed. Even by the Court’s own standards in high profile, culture war cases, the result and reasoning seemed slapped together and unconvincing. There has been a ton of excellent commentary pointing out why—including Howard's insta-reaction and Rick's post at this site—but one of the advantages of waiting a few days is that you need not cover everything but simply get to fill in the gaps. So, here are three angles I don’t think are getting enough attention:

1. The proper places for respectful consideration of religious scruples. There is no doubt that the recurrent fact pattern at the heart of the case involves a conflict of constitutional values and that our constitutional culture cannot resolve these disputes without weighing the cost to religious conscience of denying religious exemptions to civil rights laws (and other laws of general applicability) against the constitutional obligations to pursue civic equality and govern even-handedly. What strikes me as strange is the opinion’s assumption that such weighing should take place in individual civil rights enforcement actions.  Maybe the Court’s opinion is, at Howard suggests, simply a “happy talk” requirement, but to the extent that it requires something more substantive, I think it is making a category mistake. Our existing jurisprudence envisions two places where that kind of weighing should take place. The first, as Howard points out, is at the level of constitutional doctrine. In cases both specific to civil rights (for example, the famed Piggie Park litigation) and more general (notably Employment Division v. Smith), the courts have already undertaken that balancing and determined that the Constitution does not require states provide such exemptions. However, nothing prevents states from according them either, which brings us to the second place in which respectful consideration of religious scruples ought to take place, the legislative chamber.  The federal government and many states have disagreed with Justice Scalia’s balancing in Smith and provided statutory rights to religious exemptions that go beyond what the Constitution requires. While many on both sides object to the scope of particular state laws, few would argue that there has not been true democratic engagement on these questions.  In the context of that debate and the institutional design decision made in Smith, Colorado’s decision to broadly protect civic equality without according an individualized assessment of the baker’s religious scruples should have resolved the case. To allow state regulators to deny an exemption but only if they provide a sympathetic hearing and words of apology is not only a silly rule but also one that misunderstands what respectful consideration of religious scruples would actually look like.
2. The content of the Commissioners’ comments. On a related point, I think that the emergent consensus that the Commissioners’ comments about religion were, at a minimum, intemperate and disrespectful is a bit too convenient and fails to acknowledge the serious substantive point they were (inartfully) attempting to articulate.  When participants in the debate about religious exemptions reference religious support for slavery or the Holocaust, they are not making ad hominem attacks on religious belief but are instead pointing out the historical and anthropological truth that religious belief is a species of culture that often adapts to, borrows from, and incorporates other prevailing social attitudes. Not all religions or religious believers supported those outrages, but some did, and those that did often incorporated their support into their theological world view.  The likelihood that some religious groups will endorse any sufficiently popular set of cultural arrangements or social attitudes is one of the most potent arguments against allowing religious exemptions for all laws of general applicability, as legislators must remain free at minimum to identify certain nominally religious practices as sufficiently violative of human dignity to be outside the bounds of acceptable conduct. It is because outrages are sometimes perpetrated in the name of religion that we don’t let a sincere claim of religious conviction be a trump card but instead engage in complicated line-drawing to determine whether particular legal obligations ought be imposed even on those with religious objections. Given the substance of the argument, references to slavery and the Holocaust are especially pertinent examples, not cheap shots that evince hostility to religion.
3. Justice Breyer’s legacy. Masterpiece Cakeshop now joins Bush v. Gore and the Affordable Care Act cases as the third major culture war case in which Justice Breyer voted with (and likely facilitated) a seven-Justice consensus reaching a politically conservative result on a hotly contested issue for which his prior record suggested little sympathy. Perhaps these are votes of true conviction, but in my heart of hearts I remain skeptical that he would have provided a fifth vote to find an equal protection violation in Bush v. Gore, a Spending Clause violation in the ACA cases, or a Free Exercise violation in this case.  If my speculation is correct, I find it absolutely fascinating that Justice Breyer has willingly made these votes such a central part of his legacy. (And, let's be clear, we are talking about first paragraph of the obituary stuff here.)  A lot of the commentary speculates about the strategic aspect of his (and Justice Kagan’s) decision to join the opinion and that is likely an aspect of his decision making.  To that, I would add that Justice Breyer has always articulated a longterm perspective on the institutional authority of the courts and the need to maintain public trust in the process that pushes him to look for middle ground and to avoid creating the appearance of political schisms, particularly in hot button or high profile cases.  Whether the reasons for his votes in these cases are strategic or institutional, and whether his reasoning is intentional or inchoate, his behavior in these cases raises fascinating questions about the role of the appellate judge and proper decision making procedures on a multi-member court that have now become a central part of his legacy. 

SCOTUS Term: Hughes v. United States and Federal Sentencing

On June 4, the Supreme Court handed down its decision in Hughes v. United States.  Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court.  Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing.  That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.

As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient.  Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes.  This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right.  Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.”  In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.”  Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.

For example, in Peugh v. United States the government had argued that the prohibition on ex post facto laws ought not apply to the advisory federal guidelines.  According to the government, after Booker, federal guidelines “are just one among many persuasive sources a sentencing court can consult, no different from a ‘policy paper.’”  But the Peugh Court rejected this characterization of the guidelines.  It characterized the Guidelines as “framework for sentencing,” and it said that the post-Booker system is “intended to make the Guidelines the lodestone of sentencing” by “impos[ing] a series of requirements on sentencing courts that cabin the exercise of [their sentencing] discretion.”

The Court made a series of pro-Guidelines statements in Molina-Martinez v. United States as well. Specifically it suggested that trial judges need not make an independent judgment about the appropriate sentence, but rather may impose Guideline sentences without reflection.  "District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors."  This language seems inconsistent with a 2009 case, Nelson v. United States, the Supreme Court held that a district court may not presume that a Guidelines sentence is reasonable, but instead court must engage in their own independent balancing of the § 3553(a) factors. 

While Peugh and Molina-Martinez suggest that the Federal Sentencing Guidelines are more than merely “advice,” last Term, the Court suggested the opposite.  In Beckles v. United States, the Court addressed whether the post-Booker Guidelines are subject to challenge under the void-for-vagueness doctrine.  In an opinion by Justice Thomas, the Court said they were not, in part because:

The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they “do not constrain th[at] discretion,” id., at ––––, 133 S.Ct., at 2089 (THOMAS, J., dissenting).

Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.

(You’ll note that Justice Thomas had to rely from language in one of his own dissents for the idea that the “advisory” Guidelines don’t constrain judges’ sentencing discretion.)

I had been waiting to see whether the Court would take that language from Beckles seriously.  Hughes answers that question.  This is Justice Kennedy’s majority opinion in Hughes:

[T]his Court's precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant's sentencing range. Id., at 544, 133 S.Ct. 2072. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U.S., at 544, 133 S.Ct. 2072. And in Molina–Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U.S., at ––––, 136 S.Ct., at 1346.

Not only did Hughes ignore the inconsistency between Peugh/Molina-Martinez and Beckles, it ignored Beckles altogether.  Beckles isn’t mentioned at all in the majority opinion.

One irony of the opinion in Hughes is that it said the decision was necessary to resolve a split in the circuits.  Because the Guidelines exist in order to promote uniformity, the Court did not want inconsistent circuit court decisions to result in non-uniform treatment of defendants who had pleaded guilty.  But the retreat to Peugh/Molina-Martinez and refusal to acknowledge Beckles are symptoms of a bigger problem that has caused far more sentencing inconsistency across the country.  By failing to explain what “advisory” Guidelines actually are, and by making inconsistent statements about the role of the Guidelines at sentencing, the Court has left sentencing law ambiguous.  As a result, there are some circuits that routinely affirm sentences outside the Guidelines, and others that police them closely.  It is ironic that the Court wants to keep some role for the Federal Sentencing Guidelines in order to promote sentencing uniformity, but in failing to explain what that role is, the Court has created pervasive inconsistencies in sentencing law across the country.

SCOTUS Term: Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families

This post is part of a series on the Trump administration's policy of separating families at the border.  You can read prior posts in the series here and here.

I’ve written several times about the administration’s policy of separating children from families. In this post, I want to highlight some connections between the administration’s policy of separating children from families and another policy this administration (and the previous one) defended—the indefinite detention, without individualized bond hearings, of persons detained for immigration purposes.

In Jennings v. Rodriguez, the Supreme Court held that immigration statutes did not provide for individualized bond hearings for persons who are detained for immigration reasons for longer than six months. The Court did not, however, address whether the statutes, by allowing indefinite detentions with no individualized bond hearings, are consistent with the due process clause. Although the Supreme Court requested briefing on that question and set the case for re-argument, it ultimately opted not to address it.

Part of the government’s argument in Rodriguez for why the statutes do not offend due process was that some of the persons who are detained (specifically, asylum seekers apprehended at the border) have no due process rights at all. At oral argument in Rodriguez, Justice Kagan highlighted some of the problems with this position:

JUSTICE KAGAN: Mr. Stewart, is – is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

MR. STEWART: It is premised on that….

JUSTICE KAGAN: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -­that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?

MR. STEWART: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.

JUSTICE KAGAN: Okay. So -- but they do have some constitutional rights, not to be tortured, not to be placed in hard labor...

In other words, if individuals who are apprehended at the border have no due process rights at all, then the government could apparently subject the individuals to medical experimentation, among other things. The rejoinder to that line of argument has occasionally been that there is no reason to fear that would occur; the government would never be so cruel. The fact that the administration is purposefully separating children from their families—families who are fleeing persecution and violence—without any apparent plan for their reunification should make us hesitant to dismiss the possibility of government cruelty so lightly.

Even beyond that concern, however, the government’s position in Rodriguez shares some other things in common with its policy of separating families: In Rodriguez, the government is arguing that persons apprehended at the border are not “persons” for purposes of the due process clause. And with respect to family separation, the government is arguably treating them that way, potentially in violation of international law—acting as if persons apprehended at the border are not people who are entitled to decide, for themselves, whether family detention would be better for their families.

Another point of overlap is the propriety of litigating certain claims as class actions. Rodriguez, for some reason, went out of its way to include in dicta the suggestion that the challenges to the administration’s detention policies should not be litigated as a class action. As commentators noted, Rodriguez’s language was quite broad, and in tension with other cases in which the Court has permitted class-wide litigation. The government is (unsurprisingly) seizing on the language from Rodriguez in opposing class certification in Ms. L.

Another potential point of overlap is that DOJ is relying on Rodriguez to justify not only its authority to detain children and their families as it sees fit, but also to argue that courts cannot even review questions related to the AG’s detention decisions. From DOJ’s opposition to the plaintiffs’ motion for a permanent injunction in Ms. L:

“The Supreme Court recently explained that there is no judicial review of ICE’s custody decisions regarding arriving aliens: ‘As we have previously explained, 1226(e) precludes an alien from ‘challenging a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.’”

The Supreme Court decision that DOJ is referring to is Rodriguez. Of course, Rodriguez ultimately concluded the plaintiffs’ challenges were reviewable. Rodriguez’s statement also concerned the AG’s authority to detain persons apprehended at the border, not challenges to the conditions in which persons are detained. It is one thing to say the pertinent statutes prohibit challenges to the AG’s decision about whether to detain an individual; it is another to say they prohibit challenges to the AG’s decision to detain someone without food or water, for example. Even the two Justices who would have held that “no court has jurisdiction” to review whether the pertinent statutes allow for indefinite detentions without bond hearings carved out an exception for claims pertaining to the conditions of detention. From Justice Thomas’s concurrence (joined by Justice Gorsuch):

The plurality dismisses my “expansive interpretation” because it would lead to “staggering results,” supposedly barring claims that are far afield from removal. See ante, at 9 (describing lawsuits challenging inhumane conditions of confinement, assaults, and negligent driving). But that is not the case. Unlike detention during removal proceedings, those actions are neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my conclusion that §1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government’s lawful pursuit of its removal objective). Cf. Bell v. Wolfish, 441 U. S. 520, 536–539 (1979) (drawing a similar distinction).

***

The overlap between Rodriguez and the administration’s forced separation of children is striking. But it also underscores two important points—one is how prior administrations, in arguing for expansive authority over immigration and immigration detentions, created environments that were ripe for abuse, and have enabled some of this administration’s abuses. Take Rodriguez, which sought to impose bond hearings for immigration-detentions that lasted more than six months. (Many detentions during the Obama administration lasted that long, with some lasting several years.) As I wrote last spring, the Trump administration, under then-DHS Secretary John Kelly, promulgated several executive orders announcing its intention to detain many more people for immigration-related reasons. And, in doing so, it was going to prolong detentions even further:

[T]he Trump administration’s policies will cause even more delays and more backlog as ICE seeks to both remove more persons, and detain more persons who are removable or inadmissible.  As ICE attempts to effectuate these policies, the number of cases pending before immigration courts will rise.  So too will the length of detentions.

Rodriguez will address whether the deficiencies in the current system require the government to offer bond hearings every six months to justify prolonged immigration-related detentions. Trump’s executive orders make that question, and the Court’s resolution of it, even more significant.  

One implication of the Trump administration’s policies was gutting many of the existing protections that immigration law affords. As Britany Riley and I noted:

The administration’s position on the “solution” to lengthy immigration detentions—go home— offers another way to think about the separation of powers issues in the case. Their position illustrates how the structure of immigration law allows an aggressive executive branch to render meaningless the few protections that immigration law affords, simply by overwhelming the immigration system and making it too painful and difficult for noncitizens to avail themselves of the protections contained in immigration law.

The other point that Rodriguez drives home is that courts, and the Supreme Court in particular, have played a part in enabling an abusive and excessive immigration system. Courts signed off on gross expanses of power, even when there were indications that that power was being abused, or at least that there were risks that the power would be abused. The government has long said to courts, in the immigration context, “trust us; it won’t be that bad.” The Obama administration initially argued Rodriguez, and its position was that indefinite detentions of persons for immigration-related reasons are consistent with both statutes and the Constitution. Their argument, like so many arguments of prior administration, have traded on the implicit promise that they would exercise their powers responsibly and humanely, which laid the groundwork for those powers to be abused by administrations without those qualities. If the Trump administration accomplishes one thing, it should be that courts take more seriously the possibility that deferring to the executive branch on immigration, or expanding the executive branch’s power over immigration without sufficient checks, will lead to worst case scenarios. It arguably already has.

Cross-posted at Take Care.

SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?

Towards the end of his post this morning, Richard brings up an interesting  issue that arose during arguments in Hughes v. United States, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

1. Lower courts should be free to engage in "anticipatory overruling" of Supreme Court decisions. The Court itself has been most forceful about rejecting this point, saying that: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." And even if that precedent rests on "increasingly wobbly, motheaten foundations ... it is this Court's prerogative alone to overrule one of its precedents."
2. Lower courts should apply Supreme Court precedent differently just because the Court's personnel has changed. For instance, the day that Justice Alito assumed Justice O'Connor's seat, one could look at a law professor's list of 5-4 decisions that seemed likely to be overturned; even if one does not accept (1) above, one could imagine lower-court judges approaching decisions in those areas (abortion, campaign finance, affirmative action, the Establishment Clause, and the Fourteenth Amendment enforcement power) with a new thumb on the scale.
3. Lower courts should apply Supreme Court precedent differently (or not at all) in cases where no Supreme Court review is possible. This may frequently be more hypothetical than real, but is a frequent ingredient in debates about limiting federal jurisdiction. A frequent assumption of those who wanted to restrict the Supreme Court's review over certain issues or courts is that freed of Supreme Court review, the tribunal would be freed of the obligation to follow Supreme Court precedent as well. There is at least some historical support for this view.
4. Lower courts should try to follow the general drift of an area of law, not only the specific holdings and dicta of Supreme Court opinions. For instance, in qualified immunity, or AEDPA habeas review, or arbitration, the Court takes a string of cases, generally to reverse the lower courts, and generally in the same direction. Sometimes these reversals are summary, and sometimes the Court remands other cases on the same topic for review in light of the most recent reversal. Perhaps at some point lower courts are supposed to get the message.

Referring to the "predictive model" generally suggests that these four things should all travel together. But that is not so clear to me. For instance, the Court's explicit rejection of (1) does not necessarily entail a rejection of (2)-(4). For my own part, I strongly favor (1), generally favor (3), and am more open to (4) than to (2).

Another possible refinement is to imagine a "predictive model" that might sit alongside another more fundamental theory of lower court decision. For instance, a predictivist might plausibly argue that a lower court judge really has two legal duties. First, to get the law right as a matter of first principles (meaning to rule in the way that would be correct absent any precedents that misstate the law); and second, to avoid wasting the litigants' time and money with decisions that will likely be reversed. Under this theory, prediction might be a constraint on a theory of independent judgment, rather than a source of law itself. It might also suggest that in cases where predictions are the most unclear, judges should focus on the underlying principles of law rather than trying to read tea leaves. On that view, Hughes may not have been a good case to use the predictive model, but that doesn't necessarily mean there's no good case for it.

[Cross-posted, with modifications, from the Volokh Conspiracy.]

The Marks Rule’s Fate After Hughes

Hughes v. United States is out, and it’s a disappointment for those of us following the law of fragmented decisions. Though the Hughes oral argument featured by far the Court’s most thorough discussion of the Marks rule, the justices ultimately chose not to address the precedential significance of 4-1-4 decisions like Freeman v. United States. Instead, the Court revisited the merits and set a new majority rule, much as the Court has done in some past decisions that posed Marks questions. Interestingly, however, the Court’s ruling still managed to undermine one of the main defenses of the Marks rule.

Regular readers know that I oppose the Marks rule, as explained in a forthcoming article and an amicus brief in Hughes. And there were several reasons to think that, if the Court was ever going to address the Marks rule’s problems, this case would be the time to do so. The parties and amici had identified numerous circuit splits on how to apply the rule. The Court had granted review on not one but two Marks questions. And the US Solicitor General had specifically requested that the Court issue a Marks ruling to end the confusion. Yet the Court said not a word to alleviate the problem. 

Oddly, the Court did not explain why it was free to avoid deciding the Marks question, even though a Marks holding in Freeman would arguably have bound the justices. In past cases, however, the Court had set Marks aside in part because its application had badly divided lower courts, and that factor was present in Hughes as well. The decision to take a hard pass on Marks probably also resulted in part from a combination of end-of-term time pressure and an inability to form a majority on just what to do with Marks. Needless to say, it would have been awkward if the Court had issued a fragmented decision on the meaning of fragmented decisions. 

Perhaps the justices plan to take some other corrective action now that they are so well aware of the confusion that the Marks rule is causing.

One option would be to seek out another, even better vehicle to provide clarity in this area. But, again, the Court has consistently declined to clarify the meaning of Marks, and lower courts have long been left to struggle and generate circuit splits. After Hughes, I am not optimistic that the justices will do better in the years ahead. As a result, the fate of the Marks rule could ultimately be worked out in the courts of appeals. Notably, some circuits, most particularly the DC Circuit and the Ninth Circuit, have already taken steps to narrow the Marks rule, gently ushering it off the stage. Hughes rewarded those courts. 

Another corrective option would be for the justices to work harder to avoid issuing fragmented decisions with unclear precedential implications. It will be interesting to see if we can glean evidence that the justices are taking action along those lines. For example, if Justice Sotomayor were again in the position of being the solo justice in a 4-1-4 decision, she might be more inclined to cast her lot with one side right away, rather than waiting several years for the Marks rule to generate a circuit split. In other words, Hughes might mean that we will see greater reliance on the “Screws rule” (discussed here) rather than the Marks rule.  

In the meantime, Hughes offers some new fodder for thinking about Marks. Perhaps most interestingly, Hughes is something of an embarrassment for one of the main defenses of Marks. Under that view, the Marks rule is desirable because it aligns with the “predictive model” of precedent, whereby lower courts strive to predict the decisions of their judicial superiors. At the Hughes oral argument, Chief Justice Roberts forcefully asserted this view: 

CHIEF JUSTICE ROBERTS:  The first question we posed was how to apply Marks in this situation, and I wonder if I'm a court of appeals judge, it seems to me the most important thing in deciding the case is to make sure that I'm not reversed.  And it seems to me the best way to do that is through the - whatever you want to call it, the walking through, sort of counting out what would happen if you count where the different votes are. And it seems to me if you take any other approach, you're -- you're subject to reversal because, by definition, a majority of the Court here would -- would reach a different result.  

The Chief’s attempt to defend the Marks rule was eyebrow-raising at the time, given the Court’s frequent efforts to discourage lower courts from engaging in predictions when construing Court precedent. But Hughes shows why the Chief’s predictive approach to Marks is problematic on its own terms.  

If a lower court had relied on Freeman to predict how the Court would rule, it would have concluded that a case like Hughes would come out in favor of the government by a vote of 5-4. But, in fact, the vote in Hughes was 6-3 in favor of the defendant. That’s because of two developments, each of which was independently sufficient to negate the predictive value of the Freeman opinions. First, Justice Sotomayor changed her vote from Freeman. Second, a Hughes justice (Gorsuch) voted differently from his predecessor in Freeman (Scalia). So even though the precedent at issue was only seven years old, its opinions turned out to offer a very poor basis for predicting how the justices would rule. 

In short, Hughes doesn’t decide the Marks rule’s fate, but it may play some part in contributing to the rule’s abandonment.

SCOTUS Term: The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences

Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling.  However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue.  The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.

The majority opinion in Masterpiece Cakeshop holds that Jack Phillips did not receive a neutral and fair adjudication of his First Amendment challenge to Colorado’s application of its public accommodations law.  The Colorado Commission found illegal under its public accommodations law Phillips's refusal to make a custom-made wedding cake for a same-sex wedding.  In addition to some possibly hostile comments made by the Commissioners about how religious rationales are used to justify discrimination, Justice Kennedy’s 7-2 majority opinion notes that “[t]he Commission’s disparate consideration of Phillips’s case compared to the cases of the other bakers suggests” that the Commission’s ruling was inconsistent with the free exercise clause. Colorado’s public accommodations law prohibits both religious discrimination in the sale of goods and services and discrimination on the basis of sexual orientation.  Justice Kennedy’s comment about “disparate consideration” refers to the fact that the Colorado Commission has explicitly not required bakers to create cakes for religious customers seeking cakes that disparaged same-sex relationships. 

Thus, the broad reading of Masterpiece Cakeshop is that a civil rights agency cannot allow bakers to refuse to sell cakes to religious customers with religious messages they find “offensive” if it punishes Jack Phillips and Masterpiece Cakeshop for refusing to sell wedding cakes to same-sex couples.  This position is articulated by Justices Gorsuch and Alito in concurrence – that if some bakers are permitted to refuse to sell cakes offensive to their sensibilities, even if that affects customers protected by Colorado’s civil rights law, then all bakers must be permitted to do so.  Inconsistent treatment of Phillips is evidence of religious animus.

The narrower reading of Masterpiece Cakeshop, a position taken by Justices Kagan and Breyer in concurrence, reads Justice Kennedy’s comment about disparate consideration to be about the Commission’s reasoning, not the ultimate result.  Justice Kagan’s concurrence posits that the Commission should not have allowed its views about which messages on a cake are “offensive” (those denigrating or celebrating same-sex marriage) to infect its application of its public accommodations statute.  State actors cannot determine whether expressive content is protected based on their own considerations of offensiveness without violating the First Amendment and without, as here, impermissibly evaluating Phillips’s sincerely held beliefs.  However, according to Justices Kagan and Breyer, there is a principled way of distinguishing Phillips’s case from the other bakers – Phillips refused to sell a blank cake, solely on the basis of the identity of the customers.  According to Justice Kagan’s concurrence, the other bakers would not have sold cakes disparaging same-sex unions to any customers.

Although, as Howard notes, Justice Kennedy’s opinion is fairly incoherent, he successfully achieves a sizeable majority despite profound differences among the Justices.  He also makes clear that clergy cannot be required to perform same-sex weddings, but that businesses must generally respect public accommodations laws.  Justice Kennedy articulates – without much elaboration – significant principles to guide future cases.  The concurrences, however, are better reasoned, more coherent, and more straightforward about grappling with the issues.  Justices Gorsuch and Alito, and Justice Thomas, who also wrote separately, appear to believe that even a blank wedding cake is expressive and entitled to First Amendment protection.  Justices Kagan and Breyer do not appear to share this view.  Justice Kennedy has not tipped his hand either way, even with his “disparate consideration” comment.  We must await further adjudication to resolve the scope of a state’s power to enact particular anti-discrimination laws that may compel expression. 

One other note:  Although I believe this case could have been decided using an O’Brien expressive conduct rationale, Justice Kennedy’s balancing style is not well suited to First Amendment jurisprudence.  Justice Kennedy worries (justifiably) about the stigma to the LGBT community if sellers can refuse service for same-sex weddings.  Stigma, however, is an impermissible consideration in First Amendment jurisprudence, just as offensiveness is.  The real question is not how to balance the rights of different groups, but where the state’s power ends and our First Amendment rights begin.  I currently find the concurrence of Justices Kagan and Breyer more convincing – but I would be interested to see how they might decide a case with actual writing on a cake.

(Cross posted at In a Crowded Theater.)

SCOTUS Term: Masterpiece Cakeshop, The Dictapedia Edition

Thanks so much to Howard and the Prawfs crew for inviting me back this month!

As Howard points out, the logic of Masterpiece Cakeshop does not hang together particularly well, probably as a result of trying to make the holding as narrow as possible. But many of the statements in the case (especially those Leah quotes, which may have relevance to the travel ban case) seem to be written specifically with an eye toward getting quoted in future cases. Over on Twitter, Professor David Noll asks: "What's a good name for a court opinion whose primary purpose is to generate quotations for future briefs?" My favorite suggestion so far is "Dictapedia," though I also like "bench bite" as a close second. I might also add "brief bait." Other suggestions?

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

SCOTUS Term: Masterpiece Cakeshop And The Entry Ban

This morning, the Supreme Court handed down Masterpiece Cakeshop v. Colorado Civil Rights Commission. Justice Kennedy’s majority opinion held that the particular application of the Colorado Anti-Discrimination Act to the baker in that case violated the First Amendment’s Free Exercise Clause because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”

In this post, I wanted to highlight several aspects of the Court’s opinion in Masterpiece Cakeshop that, if taken seriously, would dispose of several of the government’s arguments in the entry ban litigation (Trump v. Hawaii).  Of course the Court is not always consistent in what it says or what it does. But if it is serious about the reasoning and principles it articulated in Masterpiece Cakeshop, and it should be, then it should reject several of the arguments that have been used to defend the entry ban.

Claim Number One:  A law cannot violate the First Amendment if the law could have been enacted or applied without animus or religious hostility. 

Trump v. Hawaii:  In the entry ban, the government (and the administration’s defenders) are arguing that the entry ban would be lawful absent consideration of the President’s statements or intent and that an official action cannot be unconstitutional solely on the basis of an official’s statements or intent.  This argument has also sometimes appears under banner of  “the entry ban would be lawful if President Obama had enacted it” (since President Obama hasn’t said terrible things about Muslims and Islam and banning Muslims from the United States).

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop: Not true. 

Here are his longer excerpts making that point clear:

• “Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”
• "[W]hile those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."  (And yet the Court invalidated this particular application of such a law.)

• "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection."

• “In Church of Lukumi Babalu Aye, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion."

• "The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires."

• noting the separate question of whether "the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach"

In sum:  A law, or application of a law, might be valid if it does not rest on religious animus.  But it would be invalid if it does rest on religious animus.

***

Claim Number Two: Words do not matter.

Trump v. Hawaii:  In the entry ban, the government (and the administration’s defenders) are arguing that courts shouldn’t parse officials’ words in order to determine their intent and the constitutionality of their official actions.

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  Wrong. 

Here are his longer excerpts making that point clear:

• “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
• “The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires.”

In sum:  When determining if an official act rests on hostility or religious animus, courts assess government official’s words.

***

Claim Number Three: When assessing animus, courts should indulge fantasies and engage in interpretive jujitsu and bend over backward to conclude there is no animus.

Trump v. Hawaii:  In the entry ban, the administration’s defenders are arguing that the President’s words don’t really rise to the level of animus or religious hostility, and people are failing to give the “charitable interpretation” to the President’s words.  (The government didn’t really press this argument because it’s frankly absurd.)

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  Doubtful. 

More specifically, here is what Justice Kennedy said evidenced the Colorado Civil Rights Commission’s animus in the case before the Court:

• "One commissioner suggested that Phillips can believe 'what he wants to believe,' but cannot act on his religious beliefs 'if he decides to do business in the state.'  A few moments later, the commissioner restated the same position: '[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.'”

 And Justice Kennedy’s assessment of those statement:

Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

Here is that other statement Justice Kennedy said revealed animus:

• “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

And here is Justice Kennedy’s assessment of that statement:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.

 For evidence of the President’s animus on the entry ban, I would encourage you to reach this amicus brief by the Macarthur Justice Center.  Some key highlights:

• “I think Islam hates us.”  
• “You’re going to have to watch and study the mosques, because a lot of talk is going on at the mosques.”
• “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

In sum:  The evidence of animus in Masterpiece Cakeshop was not any stronger than evidence of animus in the entry ban.  If saying "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history," and using religion to justify discrimination is "despicable" qualifies as animus, I would think saying "I think Islam hates us" and "calling for a total and complete shutdown of Muslims entering the United States" would qualify too.

***

Claim Number Four:  It doesn’t matter if there hasn’t been a specific disavowal of particular animus-laden statements.

Trump v. Hawaii: In the entry ban, the government is arguing that somehow, somewherethe President disavowed the entry ban without mentioning the specific statements he made about Muslims, the proposal to ban all Muslims, or apologizing for any of it.

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  No.  More specifically, here is what Justice Kennedy said about Colorado’s failure to disavow the preceding statements:

 "The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court."

***

I could continue on.  For example, Justice Kennedy notes in Masterpiece Cakeshop that Colorado seemingly treated the baker’s case different than others.  Does anyone remember the first entry ban, and how that was announced with … no advance notice to any of the relevant department heads?

Instead, I will just say this:  Masterpiece Cakeshop reiterated a point basic to our constitutional system—the government cannot act on the basis of animus or hostility toward a particular religion.  To effectuate that principles, courts look to circumstantial evidence, including officials’ words, to determine whether the government acted with animus.  While there are ways to distinguish Masterpiece from the entry ban litigation (including some snippets in the opinion itself), those principles do a lot to resolve the merits of the First Amendment challenge in the entry ban.  Time will tell whether the Court will stick to them.

Cross-posted at Take Care.

Defending Qualified Immunity (SCOTUS Term)

Thanks Howard for inviting me back to blog this month on the end of the Supreme Court's OT 2017 Term. There are a number of big administrative law (my field) cases on the docket, including the constitutional challenge to the appointment of administrative law judges at the SEC. (If I have time, I also hope to blog a bit about the narrative(s) scholars and commentators have attempted to craft regarding Justice Gorsuch and his first full year on the Court.)

In my first post, however, I wanted to flag a draft of a new essay Aaron Nielson and I just posted to SSRN entitled A Qualified Defense of Qualified Immunity. This essay is part of a terrific annual federal courts issue on qualified immunity that the Notre Dame Law Review will be publishing later this year.

In this essay, we respond to some of the recent attacks on qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” In particular, we respond to Will Baude’s argument that qualified immunity finds no support in positive law and Joanna Schwartz’s important empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy. (Howard also has a nice Jotwell review of Schwartz's latest article.) We conclude with some suggestions for reform that draw on our prior empirical work on qualified immunity in the circuit courts.

The draft of our paper is available here, and comments are definitely welcome. Qualified immunity is a large part of the Supreme Court's docket (or at least its shadow docket), and it will be interesting to see whether the Court entertains these invitations to rethink the doctrine in the near future. As Aaron and I explain in our article, we largely see these reform efforts as better addressed to Congress than the Court in light of statutory stare decisis.

SCOTUS Term: Collins v. Virginia And Remedial Shell Games

In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law Review, Remedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

Collins showcases how that might occur. In that case, Justice Thomas questioned the application of the exclusionary rule. Without the exclusionary rule, damages suits against officers would presumably serve as the remedy for Fourth Amendment violations. But as anyone following the Court’s docket over the last decade knows, the Court has ratcheted up the standard for qualified immunity, making it hard, if not impossible, to recover damages in most cases of Fourth Amendment violations. The Court summarily reversed a denial of qualified immunity just a few weeks ago, in Kisela v. Hughes, over a dissent by Justice Sotomayor, which was joined only by Justice Ginsburg, and not Justice Thomas.

Now, Justice Thomas has also questioned the Court’s qualified immunity jurisprudence. But until he gets five Justices to cut back on the Court’s qualified immunity jurisprudence and actually stick with that rule, doing away with the exclusionary rule will only further entrench the lack of any viable remedies for parties aggrieved by constitutional violations. And the difficulty of assembling and coordinating five Justices who can agree not only that there should be a remedy in cases involving constitutional violations, but also what the appropriate or default remedy should be, has created a real problem in the Court’s remedies jurisprudence.

Cross-posted at Take Care.

SCOTUS Term: The Cert Denial in Planned Parenthood v. Jegley

On the orders list from Tuesday was a denial of certiorari in Planned Parenthood v. Jegley, a case I wrote about previously here. The case involves a challenge to an Arkansas law that requires providers of medication abortion to have contracts with doctors who have admitting and surgical/gynecological privileges at hospitals. The district court had enjoined the law, but the Eighth Circuit vacated the injunction, reasoning that the district court had not made the necessary findings in order to enjoin its enforcement.

Planned Parenthood v. Jegley is part of a trend in cases post-dating Whole Woman’s Health v. Hellerstedt in which states are seeking to whittle down much of the ground that reproductive health advocates thought they had preserved in Hellerstedt. Hellerstedt invalidated two provisions, one that required abortion providers to have admitting privileges at hospitals, the other that required abortion providers to retrofit their facilities to comply with the requirements for ambulatory surgical centers. In invalidating the requirements, Hellerstedt emphasized that courts must assess whether a requirement actually furthers a valid purpose, and weigh its benefits against the burdens the law imposes. In the wake of Hellerstedt, and particularly in the wake of the election, states enacted a slew of restrictions on abortion, and in defending their constitutionality, they sought to limit Hellerstedt in a variety of unpersuasive ways. I wrote about some of them in this piece for the Michigan Law Review online.

After the certiorari denial in Planned Parenthood v. Jegley, commentators were quick to explain that the procedural posture of the case made it an unattractive candidate for certiorari. The Eighth Circuit, after all, had vacated the injunction and remanded the case to the district court to make additional findings. Thus, it is still possible that Planned Parenthood will prevail and have the law enjoined.

But that tree obscures the forest of the post-Hellerstedt landscape. The Eighth Circuit’s reasoning in Planned Parenthood v. Jegley, which stands in light of the Court’s denial of certiorari, was, to put it lightly, absurd, and also wildly inconsistent with Hellerstedt. Planned Parenthood v. Jegley, for example, didn’t assess the law’s benefits while demanding more evidence of the law’s burdens, which wouldn’t (and shouldn’t) have been required given that the law has no apparent benefits. It also faulted the district court for not defining the phrase “the Fayetteville area” and for not estimating the number of women who would forego and postpone their abortions. (The district court in Hellerstedt did not do any of those things.)

Planned Parenthood v. Jegley’s reasoning is already been seized upon by states in the Eighth Circuit in order to justify arguments that would have the circuit flouting Hellerstedt. Consider Hopkins v. Jegley, which involves a challenge to an Arkansas law banning the D&E (dilation and evacuation) procedure, a very commonly used method for second-trimester abortions, among other provisions. Here is how the state is using Planned Parenthood v. Jegley in its brief:

• “A law only imposes an undue burden where its benefits “are substantially outweighed by the burdens it imposes”
• “An undue burden exists where a law completely fails to advance a legitimate interest (or does so in such a trifling way that it lacks any rational connection with the governmental interest) and imposes exceptional and truly significant burdens.”
• “[O]nly rarely—where a legislature totally errs in assessing benefits and burdens—will a law constitute an undue burden.”
• “[A]s this Court recently held in vacating a preliminary injunction similarly based on a finding that a regulation would cause “some women” to delay or forgo an abortion, whether a regulation impacts some is not the relevant question on a facial challenge. Instead, to justify facial relief, [a plaintiff] must demonstrate—and the district court must determine—that the Act would be unconstitutional in a large fraction of relevant cases and not just potential situations that might develop.”
• A law is not unconstitutionaly in a large fraction of cases where “the district court merely alluded to amorphous groups of women.” “[S]peculation about some, unknown number of women hardly warrants facial relief.”

Some of those are direct quotes from Planned Parenthood v. Jegley; others of them are not. The point, however, is that states are milking Planned Parenthood v. Jegley for all that is worth, and given that their audience is the court that wrote Planned Parenthood v. Jegley, some of these arguments may succeed.

Another, related issue is what will happen to abortion providers so long as they labor under this unfavorable and incorrect regime. I’m not just talking about the clinics that are affected by the regulation at issue in Planned Parenthood v. Jegley, though those clinics may be among the casualties. Under usual circumstances, once an appellate court vacates an injunction and issues its mandate, the state could enforce its law (which would no longer be enjoined). In Planned Parenthood v. Jegley, however, the clinics asked the Eighth Circuit to stay the issuance of its mandate, thus preserving the injunction, until the Supreme Court resolved the petition for certiorari. The Eighth Circuit granted Planned Parenthood a stay, over the noted dissent of one judge, Judge Gruender.

But now that the Supreme Court has denied the cert petition, the mandate will issue and the providers will have to frantically seek interim relief (again) in the district court in order to avoid shutting their doors, even temporarily. (The plaintiffs in Planned Parenthoodargued that the regulations would close two of the state’s three clinics.) Interim relief from the provision is important because even temporary door shuttering can have lasting consequences; that’s part of what makes required do-overs and vacated injunctions so risky (in addition to delaying procedures for women). As Melissa Murray noted in this Jotwell review, many of the clinics that closed in the wake of the regulations challenged in Hellerstedt never reopened once the regulations were ultimately invalidated.   The same thing may happen in the Eighth Circuit and elsewhere in the wake of Planned Parenthood v. Jegley, as litigants may not always succeed in preventing regulations from going into effect, even for short periods of time.

Two other notes on the certiorari denial in Planned Parenthood v. Jegley. In addition to the procedural posture of the case, the denial prompted questions about a certain Justice’s possible retirement. One way of looking at the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan was that they were unwilling to push for a grant (and vote for a grant, or at least note that they did so) if they were uncertain whether Justice Kennedy would still be on the Court when it heard the case the following term. Another way of looking at their votes, however, is that they were willing to wait for another case to make its way to the Court at some point in the future, suggesting they might not think Justice Kennedy is going anywhere just yet. I guess we’ll learn more by the end of June.

Disclosure: I signed an amicus brief in support of cert in Planned Parenthood v. Jegley.

Cross-posted at Take Care.

SCOTUS Term: Making A Murderer Makes Its Way To The Supreme Court

This post is cross-posted at Take Care.

Last week, Williams v. Louisiana settled with an agreement that resulted in the release of Corey Williams. Williams, for those who may not remember, involved a challenge to the conviction of a 16-year-old child with severe intellectual disabilities. The state courts, in upholding his conviction, had refused to consider evidence of his intellectual disability, and how it bore on the (lack of) credibility of his confession. Indeed, in order to secure his release, Williams agreed to plead guilty to obstruction of justice, a charge that stemmed from his false confession, a decision that gave up his ability to seek any compensation for his wrongful incarceration. (You can help remedy the effects of that decision by contributing to his freedom fund here.)

Now, another case involving confessions extracted from juveniles with intellectual limitations is making its way to the Supreme Court. This case shares some other important parallels with Williams as well—it is a case that raises the question whether and to what degree courts, and perhaps state courts in particular, are obligated to consider evidence of age and intellectual limitations when assessing the legality and credibility of a confession; it is a case in which the defendant has attracted significant support from former prosecutors and law enforcement officials; and it is a case that has received a not insignificant amount of media attention.

The case involves Brendan Dassey, of Making A Murderer fame. For those who haven’t watched the series, Dassey—who has significant intellectual and social limitations—was convicted of murder and related offenses largely on the basis of a confession that was obtained while he was 16. And the question in Dassey v. Dittman is whether the Wisconsin courts were unreasonable to conclude that the confession was obtained voluntarily.

As with Williams, there are reasons to doubt the veracity of Dassey’s confession. The cert. petition contains a long and troubling excerpt of an exchange between Dassey and investigators, during which investigators ask him for information, Dassey provides answers that are apparently inconsistent with the forensic evidence, and then investigators give him answers that are consistent with the forensic evidence, at which point Dassey—who is susceptible to suggestion—adopts those answers. It is hardly a model of a confession that emanates from the defendant’s knowledge, rather than the officers’ suggestions. And the confession, as was true with Williams, was essentially the entire case against Dassey. (The interrogation is also videotaped, which makes any factual disputes and characterizations less significant.)

Also like Williams, Dassey’s argument has attracted the notable support of formal prosecutors and law enforcement officials, including in an effective amicus brief by Lisa Blatt, Anthony Franze, and other lawyers at Arnold & Porter. The brief, on behalf of current and former prosecutors, highlights how many interrogation techniques are not suited to interrogating juveniles or intellectually limited individuals, and how using those techniques in juvenile interrogations has generated and will generate false confessions.

Another parallel with Williams is that Dassey involves allegations that a state court has declined to apply relevant Supreme Court precedent, and, in doing so, enabled a serious constitutional violation. But Dassey involves one wrinkle that Williams did not, which is that Dassey comes to the Court on federal post-conviction review, rather than on direct review of a state court judgment. Thus, the limitations of the Anti-Terrorism and Effective Death Penalty Act restrict the scope of the Supreme Court’s review; Dassey has to show not just that the Wisconsin court’s decision is wrong, but that it was *unreasonably* wrong.

At first blush, that obstacle is a significant one. The Supreme Court has, after all, repeatedly emphasized the severity of AEDPA’s restrictions, and the state makes much of this in its brief in opposition, arguing that AEDPA’s limitations make Dassey a less than ideal vehicle for reviewing the legality of a confession extracted from a juvenile with intellectual limitations.

While I’m no fan of AEDPA, I agree that its restrictions are severe. But I’m not sure that it is quite the obstacle the state makes, for a few reasons. One is that despite the Court’s persistent appetite for reversing grants of habeas in light of AEDPA, it has also decided a number of claims in cases that are constrained by AEDPA. To name a few:

• Lafler v. Cooper
• Miller-El v. Dretke
• Rompilla v. Beard
• Miller-El v. Cockrell
• Buck v. Davis
• Wiggins v. Smith
• Panetti v. Quarterman

Moreover, the fact that the Court has taken up so many AEDPA cases and ruled against defendants, including in summary reversals, provides a reason for the Court to find an example to highlight when relief under AEDPA is appropriate. As Justice Sotomayor wrote in her dissent in Kisela v. Hughes with respect to qualified immunity:

As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” See also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) (“[N]early all of the Supreme Court’s qualified immunity cases come out the same way—by finding immunity for the officials”); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.

Relatedly, the state’s argument that the legality of the confession turns on a fact-bound standard, rather than a rule, cuts both ways. While it is true that the state has more leeway in applying generally worded standards, that also impresses the need for the Court to take more cases to establish the contours of the standard. That is particularly true for the voluntariness standard: As Eve Primus explained in a Michigan Law Review article, the Court’s other confession jurisprudence (particularly related to Miranda and Massiah) has created a need to impose more rules on the voluntariness standard for confessions. (Dassey’s cert petition is also supported by an amicus brief on behalf of criminal law and criminal procedure professors.) And for a variety of reasons, there are reasons for the Supreme Court not to shy away from taking cases that are in federal post-conviction review. One reason is that the Supreme Court’s decision in Lawrence v. Florida creates a disincentive for defendants to seek Supreme Court review of state court decisions: Lawrence held that the time between the state supreme court’s decision in state post-conviction proceedings and the U.S. Supreme Court’s disposition of a petition for certiorari counts against AEDPA’s one-year statute of limitations. Some state court prisoners thus may not seek Supreme Court review, or proceed directly to federal post-conviction review, which can then function as a reason against certiorari.

Dassey thus provides the Court an opportunity to clarify the voluntariness standard, particularly how it applies to juvenile interrogations and juvenile confessions. That Dassey and Williams made it to the Court in such quick succession underscores a point made by two of the amicus briefs in Dassey: Treating juveniles interrogations and confessions like adult interrogations and confessions is a widespread problem, and one that risks false confessions and wrongful convictions.

SCOTUS Term: Can the Court De-Politicize Masterpiece Cakeshop and Janus?

The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention.  The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures.  However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven.  With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.

Defusing Masterpiece Cakeshop

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Petitioner Jack Phillips argues that the First Amendment supersedes a Colorado law requiring his bakery to make a custom-made wedding cake for a gay couple.   Because of the assignments for the December sitting, the opinion will likely be written by Justice Kennedy (although Chief Justice Roberts may take this opinion, leaving Justice Kennedy Carpenter, another criminal procedure opinion for Justice Kennedy this term).  Justice Kennedy, the likely author of the opinion, may have inadvertently inflamed the culture-wars aspects of this case.  During oral argument, Justice Kennedy remarked, “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Justice Kennedy has framed the case as deciding who deserves tolerance – the LGBT community in its desire to buy goods on equal terms as straight people, or religious people in their desire to participate in commercial artistic ventures without abandoning their faith.  This framing, however, is orthogonal to the best legal arguments in the case.  Following the doctrine, this case is about the limits of the protection against compelled speech, as applied to a product that is either pure speech or expressive conduct, in a business setting.  Unless Justice Kennedy renders a narrow opinion about religious animus by the Colorado Civil Rights Commission, the free exercise challenges are actually much weaker than the free speech challenges.  Although we should not lose sight of the fact that this case is certainly and understandably consequential to many, both practically and symbolically, the framing of this case as involving gay rights versus religious liberties is both too pointed and too broad.  The fact that Phillips is religious may not be dispositive, and the particular minority group discriminated against may not be dispositive, to the First Amendment arguments at issue.

My hope (although not my prediction) is that Chief Justice Roberts takes Masterpiece Cakeshop and disposes of it on analytically sound grounds that sidestep the case’s enticing political fault lines.  One way to do so would be to hold that blank wedding cakes without writing are not expressive conduct, because these blank cakes do not convey the seller’s message to a reasonable observer.  However, if the Court wanted to go this route, it should have simply waited for a cake that conveyed a clearer message.  Another, I believe correct, way of deciding the case that is less politically inflammatory is to say that Phillips’s wedding cakes are expressive conduct, but that this Colorado law, as applied in this case, survives intermediate scrutiny.  This sort of moderate decision would leave room for cases where a state’s public accommodations law could be struck down as chilling too much speech.  A third option, argued in an amicus brief, would be to hold that cakes are not sufficiently expressive to justify First Amendment protection, but that other, more artistic products cannot be compelled by public accommodations laws.

Avoiding Janus

I have previously written on my own blog that, whatever the right outcome in Janus v. AFSCME, the union dues case, that deference should not be given to the poorly reasoned Abood.  In Abood, the Supreme Court held that the First Amendment is violated when unions require dues to fund political activity, but not to fund their collective bargaining.  Abood has been criticized as both providing too much and too little First Amendment protection to the mandatory collection of union dues and does not have much to commend it.

I now wonder if the Roberts Court should use Janus to manifest the endurance and stability of Supreme Court precedent.  In a time where the right is calling for overruling Roe v. Wade and the left is calling for overturning Citizens United, perhaps the best course is to stay the course.

This is not to say that the Court should never reconsider its precedent, but in a case with substantial reliance interests on the holding in Abood, overturning precedent that is not manifestly erroneous or unjust, which reaches a middle-ground solution, is perhaps not proper.  I am increasingly concerned about the Justices’ and the public’s willingness to treat Supreme Court precedent so flippantly.  I look forward to all comments and to participating in this excellent symposium.

(Cross posted at In a Crowded Theater.)

SCOTUS Term: Where are the opinions?

I'm happy to be back at Prawfs for another end-of-term Symposium. I thought I'd kick things off with a short post that's more of a complaint. For the second week in a row, I got set up with my computer at a coffeeshop at 9am central time, ready to start digesting what I was sure would be a big batch of opinions. And for the second week in a row, the Court gave us only two opinions (though today, the Justices also DIG'd another case, City of Hays v. Vogt). One of today's two opinions, Lagos v. United States, is only 8 pages long. While Collins v. Virginia, an interesting Fourth Amendment case, is quite a bit meatier (there's a lot to digest in Justice Thomas's interesting concurrence challenging the application of the Fourth Amendment exclusionary rule to the states), that's not a very good showing for this point in the term. (How exactly all that added up to two boxes' worth of opinions isn't clear.) As Steve Vladeck noted on Twitter, the Justices now have 29 opinions left to decide over four scheduled hand-down days in the next month (June 4, 11, 18, and 25). The Court will likely add one or two additional days (perhaps a Thursday or two as the end of June approaches). But even so, that's a lot of work to squeeze into a small amount of time. Thoughts after the jump.

As of a couple weeks ago, the Court was setting records for the slow pace of opinions according to Adam Feldman of Empirical SCOTUS. With only four opinions since then, that almost certainly remains true. We've puzzled over the explanation for the slowness on First Mondays, but haven't reached any consensus. Justice Gorsuch's apparent proclivity for writing separately seems likely to be part of the story, as is the Justices struggling with some really big cases like the pending gerrymandering challenges and the challenge to the President Trump's entry ban. But we may not get a full explanation until someone releases papers from this Term, which could be decades away (though I have some hope that when she leaves the Court, Justice Ginsburg will release hers more quickly than other Justices who have left the Court recently). 

The Court could just stretch out the Term by releasing opinions in July (or even later). But I wouldn't bet on it, even this Term. The Justices are extremely reluctant to do so; most of the Justices plan vacations in Europe or other similarly pleasant locations, and they are not going to be happy about changing those plans. Instead, we'll most likely just see a mad dash to the finish.

All this is no doubt making for a very difficult June for the Justices, law clerks, and Court staff. And it will likely mean that the quality of the opinions will suffer a bit; the big rush over the next four weeks will probably mean that some opinions get less scrutiny than they would if they were being issued in early December. That is especially true of the remaining opinions that are less high profile than, say, Masterpiece Cakeshop. That's unfortunate, since the cases that aren't headline-grabbing can still be really important for the lower courts (as Will Ortman and I have argued). Leaving all the big cases for the very end of the Term is also bad for the public, I think, as it means that the slightly smaller cases get less scrutiny in the media. 

For that reason, every June we see some kind of a race to the finish—though this June looks to be even worse than usual. Can this problem be avoided? Steve Vladeck suggests that "Even if the Justices are steadfastly committed to being done by the end of June, they can do lots of other things, like spread April arguments over the rest of the Term, so that things aren’t so compressed at the end." I think this would be a good goal, but I suspect that even if the Justices cancelled the April sitting entirely, we'd still see the same dynamic. Writing Supreme Court opinions is challenging; and Supreme Court justices, for all their achievements, are still just people, with ordinary human faults like a tendency to procrastinate. It's easy for the Justices to obsess endlessly over the language in an opinion, and when there is a dissent or two, it's easy for each side to keep revising endlessly to make sure that the opinion is as persuasive as possible. Deadlines are great motivators, though, and I think the end-of-Term deadline is what makes the Justices finally stop tinkering and just get the opinions out. Getting rid of the April sitting would probably just spread the tinkering stage out for longer, without reducing the end-of-Term madness. 

Another alternative would be to just get rid of the whole idea of the summer recess entirely. The Justices would hate that (no more "teaching" in Europe?). But I think the Summer recess serves an important function for the Court. The opinions the Court releases at the end of the Term tend to be particularly divisive, touching on the most contested issues like abortion, church and state, and so on. Tensions flare up, and sometimes the bickering between the majorities and the dissenters can get really personal. The Justices have to work together for more or less the rest of their lives, and I think getting everyone out of the building for a couple of months is a good opportunity for the temperature to cool down so everyone can work together productively again the next Term. 

So I'm not sure how to solve the problem more generally. But this Term in particular seems to be highlighting how much of a problem the Court's uneven workflow can be. 

Rotations

June will host our second End of SCOTUS Term Symposium. Guests this year are Will Baude (Chicago), Daniel Epps (Wash U. and the First Mondays Podcast), Charlotte Garden (Seattle), Erica Goldberg (Dayton), Leah Litman (UC-Irvine), Andra Robertson (Case-Western) Stephen Sachs (Duke), Ian Samuel (Climenko headed to Indiana-Bloomington and the First Mondays Podcast), and Andrew Siegel (Seattle). If the last month of this Term is like last Term, it should be a rich month of posts. The Court issued two opinions (and DIG'd a third case) this morning, so some of the symposium guests may begin a few days early.

Thanks to our April/May visitors, who will be finishing this week.

Symposium Conclusion: SCOTUS OT 2016

Thanks to all our June/early-July guests for their participation in the End-of-Term Symposium.  I hope to make this an annual event, especially as future Terms prove less quiet and undramatic.

All complete posts (in reverse chronological order) can be found here.

SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction

Cassandra’s post below strikes me as basically right: after a long drought, the Court is paying serious attention to personal jurisdiction. So it’s worth looking at the state of the field.

The personal-jurisdiction debates I’ve seen—on blogs or Facebook posts, in email chains or in briefs and opinions—invoke a wide variety of different arguments. What’s striking, at least to me, is a lack of substantial attention to determining what counts as a good argument—what makes particular claims about personal jurisdiction either true or false. (As noted below, this is part of a broader failing in constitutional scholarship, effectively discussed in Chris Green’s work-in-progress on constitutional truthmakers.) In other words, a great many personal-jurisdiction arguments seem to be largely talking past each other, rather than joining issue on something we can resolve.

 

For example, many arguments I’ve seen are openly prudential. They argue that upholding (or denying) jurisdiction in such-and-such a case would be a good policy idea, that it would make the legal system better rather than worse, that it would open courthouse doors to sympathetic plaintiffs or lift heavy burdens from sympathetic defendants. But the law does lots of things that are terrible policy ideas, in all sorts of ways: just think of the tax code. So it’s not clear why we should feel confident that any particular good idea would be the right answer on the law—or that any given bad idea is therefore the wrong answer on the law.

Other arguments root themselves in judicial doctrine: personal jurisdiction is present or not because the courts have so held, or because the best reconciliation of their past decisions would so hold, or (to be more Holmesian) because that’s what they’re most likely to hold in the future. On the most extreme account, personal jurisdiction is whatever the courts say it is, so it’s impossible for the courts to be wrong. But many people who deploy these arguments seem to use them to criticize judicial decisions—as if the courts have somehow made mistakes in predicting their own rulings. And even paying due respect to accumulated doctrine, what the courts seem to be saying here is that personal jurisdiction isn’t whatever they say it is: they keep rooting their jurisdictional holdings in other legal rules, with sources external to judicial doctrine alone.

Usually courts root their holdings in the Due Process Clause, ostensibly as generous here as elsewhere (“Turn it over, and turn it over, for all is therein”). But here, too, there’s little effort spent on identifying what counts as a good due-process argument—on what makes claims about jurisdiction-being-consistent-with-due-process true or false. It might involve the defendant’s burden, or the state’s legitimate interests, or fundamental fairness, or a political-theory concept like sovereignty, or history-and-tradition, or some complicated weighted sum of the above. (And over all of these looms the ghost of Pennoyer, which still casts its dark shadow over the U.S. Reports no matter how often academics declare that it was killed off, once and for all, by Insurance Corp. of Ireland or by International Shoe.)

Put another way, the same inattention to truthmakers that we see in con law debates shows up in personal jurisdiction too. This makes some sense, because personal jurisdiction is all about the scope of the powers exercised by various state or federal officials; that’s a topic in small-c constitutional law, whether or not it’s actually resolved by the contents of the U.S. Constitution. But it also explains some of the pathologies of personal-jurisdiction scholarship, because members of different schools will insist loudly on particular priors—the role of interstate federalism, the needs of plaintiffs, the apparently prophetic authority of von Mehren and Trautman—without trying to explain why other people ought to be convinced of them too, on grounds that they might share. There's no escape for civil procedure folks, who often imagine their field to be more rigorous and determinate than that of their con-law colleagues down the hall, from stating and defending their constitutional commitments.

The best way to understand the current confusion is probably to see where it came from. On my reading of the history, the phrase “due process of law” wasn’t supposed to enact substantive standards for jurisdiction—as opposed to a means of enforcing standards supplied by other sources, such as general and international law. Trying to squeeze detailed jurisdictional rules out of those four words is like trying to squeeze blood from a stone. So it shouldn’t surprise us that, after nearly a century of misattributing complex general- and international-law rules to a single phrase in the Constitution, we’d find our underlying jurisdictional principles hard to state or explain—much less to apply to new circumstances, or to ground in more general understandings of the law.

Likewise, it’s not surprising that standards derived from older doctrines of general and international law might prove somewhat awkward, from a policy perspective, in an era with more extensive cross-border activity. That’s why jurisdiction might be an area most properly addressed by statute. Looking to some future decision of the Court to sort everything out for us is a false hope: nine Justices and their clerks don’t have enough time to work out good policy solutions for all of America, and they also lack the legal authority to try. Congress may have the right to make certain kinds of arbitrary compromises, in pursuit of rough justice, that courts in our system don’t. Failing that, the courts will continue to muddle through. I wouldn’t call this pessimism, so much as appropriate caution about what judges and courts can properly achieve.

But it would help, in the meantime, if we who think and write about the subject were better about clarifying our terms, and about trying to argue with rather than against one another. If we think a result is bad policy, we should say that it’s bad policy. If we think that a holding is inconsistent with the deep principles of International Shoe, we should say that instead, and defend why those principles should matter to those who view them with indifference. And if we think that a particular decision is wrong on the law, we should be clear about what we mean by that, and on the sources of the legal rules that we invoke. Doing all this may not lead to consensus or agreement, at least not right away; but at least we’ll be talking about the same thing, which is the first step to understanding it.