Author: Gerard Magliocca


Thoughts on the McDonald Argument

The oral argument in today’s case about the incorporation of the Second Amendment was dull (at least based on the transcript).  It is clear that the Court will extend Heller to the States and that the Privileges or Immunities Clause will be ignored (maybe Justice Thomas will write separately).  Having said that:

1.  One amusing moment was when Justice Scalia asked whether the right to bear arms is “implicit in the concept of ordered liberty,” the test from Cardozo’s opinion in Palko v. Connecuticut, and pointed out the most nations don’t guarantee gun rights.  That was a criticism of the Palko test, but I thought were weren’t supposed to look at foreign law to interpret the Constitution.  (Maybe he meant that because Palko permits such an inquiry that standard is incorrect, but then again it doesn’t require looking at foreign law.)

2.  Justice Stevens’ suggestion that the Second Amendment should not be incorporated jot-for-jot is a bad idea.  The fact that the Sixth Amendment jury right is treated that way (on the unanimity issue) is not an example to follow; it is an exception that should be eliminated.

3.   The Court will probably not say anything new about the scope of the Second Amendment in the opinion.  More litigation to come!


Mainstream Judicial Nominees

Last week the President’s nominated Goodwin Liu, a professor at UC-Berkeley, for a seat on the Ninth Circuit.  I went to law school with Goodwin, and he is exceptionally smart, thoughtful, and fair-minded. Though we do not approach constitutional issues in a similar way, he would be a superb judge.

Consequently, I was very disappointed by the statement released by Senator Jeff Sessions (R), the ranking member of the Judiciary Committee.  Of particular note was the Senator’s assertion that Professor Liu is “far outside the mainstream of American jurisprudence,” which was followed up by the not-so-reassuring claim that “his record will be examined carefully and fairly.”  The idea that Professor Liu or his scholarship is exceptional for anything other than excellence is absurd.

Moreover, I don’t know what the mainstream of American jurisprudence is, unless that is supposed to mean “Think like Justice Kennedy.”  (And if you believe that is the appropriate standard for judges, think again). In truth, there are two currents in the mainstream–liberal and conservative.  For example, Chief Justice Roberts and Justice Alito are mainstream conservatives, while Justice Sotomayor is a mainstream liberal. Anyone who fits that category should be confirmed by the Senate unless a valid issue is raised about that candidate’s integrity or experience.  Professor Liu easily passes that test.

Unfortunately, there are many organizations and lawyers inside the Beltway whose existence and ability to sustain themselves through fundraising is predicated on stirring up judicial confirmation fights. Since there are not enough Supreme Court nominations to go around, these groups now target circuit nominees. Both sides of the political divide are guilty of this behavior, and they ought to knock it off.


Supreme Court Fever

Yesterday, Tom Goldstein kicked off this year’s speculation about who the next Justice will be (assuming that Justice Stevens retires, which seems highly likely).  His view is that Solicitor General Elena Kagan will get the nod.  I think this is probably wrong.

With respect to this pick (as with every Court nomination), the President will need to make a political calculation.  In this case, part of the choice comes down to “Does he want a smooth confirmation?” or “Does he want to pick a fight with Republicans and excite his base?”  The selection of Kagan would not fulfill the latter goal, as far as I can see, thus her selection makes sense only if the President wants to calm the waters.  And that depends to a large extent on what happens with health care, which is too close to call.  If the health care bill fails, then the President will need something for his base and Kagan would probably be out of luck.  If health care passes, though, then her chances go up.

Even assuming that Kagan’s nomination makes political sense, I think there is a valid case to make against her on the merits.  First, a sitting SG that reaches the Court must recuse herself in many cases during the first year or two of her tenure because of her involvement in the certiorari petitions.  Thus, there may be a significant short-term cost to picking her that would not be true for a sitting judge or an elected official.

Second, I’m not clear that Kagan has been a good Solicitor General.  You could make a decent case that her handling of Citizens United, from the point of  view of those who don’t like the decision, was slapdash both in the initial argument and in the way the issues were framed on reargument.  As the outcome of that case is dear to progressives, I wonder how they will view her lawyering skills upon closer scrutiny.  (To be fair, you could say that no matter what she did the outcome would have been the same, but I’m not sure about that.)


Summary Reversals by the Supreme Court

Other than Citizens United, the most interesting trend of the Supreme Court’s term thus far is the increasing use of summary reversals (in other words, a decision on the merits without full briefing or argument). These are not cases where the Court is just doing a GVR (“Grant, Vacate, and Remand”) in light of a recent decision. Instead, they must be situations where the Justices think that the lower court was so wrong that only a brief per curiam opinion is necessary for reversal and that adding the case to its docket would be a waste of time.

My sense is that this is not a positive development.  Since the grant of certiorari discretion in 1925, it has become axiomatic that the Supreme Court is not in the error correction business.  But that’s what summary reversals are.  If the legal issues involved are sufficiently important to merit the Court’s attention, then they should also be significant enough to deserve full briefing and argument.  Many lawyers criticize the Court for not taking enough cases, but I don’t think the summary reversal procedure is what they had in mind.


The Senate Parliamentarian

One interesting facet of the health care debate is the political authority being wielded by civil servants.  For example, every time a new version of the legislation is proposed, there is a pause while the Congressional Budget Office (CBO) determines how much the plan will cost.  This “score” ends up being quite important, as many Senators will not support a bill that costs more than a certain amount.  Nevertheless, they are not in a position to challenge the CBO’s numbers, as their independent determination would be dismissed as nothing more than politics.

Things are more ambiguous with respect to legal interpretation.  The Attorney General would take some political heat if he rejected an opinion of the Office of Legal Counsel (OLC), and the President would take even more heat for rejecting the legal views of the Justice Department.  Nevertheless, it would not be beyond the pale for that to happen because the political costs might be tolerable, in a way that would not be true if a President or Attorney General tried to defy a federal court order.  The latter reflects a constitutional principle and the former does not –probably because it is an intra-executive-branch dispute.  (Of course, the OLC is led by a political appointee, but until recent years it was seen as a nonpartisan institution.)

How does the Senate fits into this equation?  Rulings on Senate procedure are normally made by the parliamentarian, a civil servant, who advises the presiding officer about what should be done.  The presiding officer is formally free to disregard that advice, but the Vice-President has not exercised his authority to do so since 1975.  One could say that this abdication to the parliamentarian is now so settled that a contrary action should be deemed out of bounds.  I am not clear, though, about the political costs of rejecting the parliamentarian’s advice.

The reason I raise this point is that, if the Senate Democrats use the reconciliation process to pass health care, the parliamentarian could become a household name.  (He’s Alan Frumin, and has been in office since the 1990s).  If he makes some favorable rulings on the points of order that the Republicans are sure to raise, that will put Joe Biden in the hot seat.  Will he feel bound by those rulings?  Or will he overrule any decisions that mess up the President’s proposal by excluding them from reconciliation and subjecting them to the sixty-vote cloture rule?  And if he does that, how will the country react?   Will anyone care?


Reconciliation Showdown

If recent media reports are correct, the President and Senate Democrats have decided to pass most, if not all, of the health care bill through the reconciliation process, which is what I predicted would at least be attempted in this post last month after the Massachusetts Senate election.  This will trigger a major fight in the Senate and in the country as Democrats will be accused of “breaking the rules.”  Presumably, they will respond by arguing that they are acting in the name of “democracy” because the 60-vote requirement for cloture is unreasonable. This is a perennial debate at constitutional inflection points, so they’ll be plenty if time to talk about this in the coming months if Senate Democrats actually take the plunge.  (Granted, this might render my draft filibuster article moot — oh well.)


President Obama and the Tea Party

Readers of this blog know that I have repeatedly asserted that President Obama’s election in 2008 marked a generational transition in accord with a theory of constitutional change set forth in my book on Jacksonian Demoracy.  Basically, the idea is that every thirty years or so the established party system falls apart, there is a realigning election, and a new movement, after overcoming intense opposition, creates a new governing philosophy.

There is one major exception to that pattern, and it’s the subject of my forthcoming book on William Jennings Bryan and the Populists (hopefully coming to a store near you in September). Bryan (depicted on the right) was another young and charismatic leader who came along in a time of economic distress and political turmoil.  But he lost the crucial 1896 election (and in 1900 and 1908), in part because he scared a lot of people.  The result was a backlash against his policies that reset the constitutional baseline in a totally different direction (Jim Crow, liberty of contract, etc.)

Is it possible that Obama is another Bryan?  (Not from a personal standpoint, but from a political one).  My initial take was, “No, because Obama won.”  Consider, though, the following hypothetical.  Suppose that Bryan had won in 1896 and his presidency turned out to be a disaster.  In 1898, the Republicans regained control of Congress with the help of a new grass-roots movement that mobilized against Bryanism.  And in 1900, the GOP captured the presidency as well and, energized by these new citizen activists, embraced far more conservative policies than they had followed before 1896.

The only difference between this and what actually happened is that Bryan was stopped (and the backlash took hold) before he won.  But that isn’t much of a difference.  And it suggests that the Populist example is worth considering more carefully for clues about how this Presidency will unfold.  Since most Presidents at the start of a realignment run into problems, one cannot conclude that the Obama Administration will fail and provoke an even more intense counter-reaction from the Tea Party.  But that outcome is possible.


Budget Reconciliation

Here’s a question worth mulling over.  Suppose that Senate Democrats decide to jam the health care bill through using the reconciliation process, under which only 50 votes (plus Joe Biden) are required.  They do this through a set of favorable rulings by the presiding officer (Joe Biden) saying that everything in the health care bill is related to the budget process.  Would that raise a justiciable question?  In other words, would that be more properly viewed as an interpretation of the Budget Act of 1974, which created reconciliation, or an interpretation of the Senate’s precedents dealing with cloture?  If the former is correct, then one would think that the Senate’s statutory interpretation could be challenged in court.  If the latter is true, then the issue would deal with the Senate’s rules, which would make judicial intervention highly problematic.  Moreover, would anyone have standing to challenge these actions in either case?  If so, whom?


The Future of Rewards

This is the last in my series of posts on rewards.  I want to give a nod to Nate, who pointed out to me that the first society to rely heavily on rewards as a regulatory tool was Liliput (as described in Gulliver’s Travels:

“Although we usually call reward and punishment the two hinges upon which all government turns, yet I could never observe this maxim to be put in practice by any nation except that of Lilliput . . .  And these people thought it a prodigious defect of policy among us, when I told them that our laws were enforced only by penalties, without any mention of reward.  It is upon this account that the image of Justice . . . [has] a bag of gold open in her right hand, and a sword sheathed in her left, to show she is more disposed to reward than to punish.”

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