Author: Gerard Magliocca


Raising the White Flag

I’m now working on an article about the constitutionality of the individual health care mandate.  To put that issue in context, I’m looking at other cases where a skeptical Court reviewed a major (and controversial) law passed by a new Administration. My prior work focused on situations where the Court engaged in massive resistance by striking down the statute in a “preemptive opinion,” which involves (1) reaching out to decide the constitutional question; (2) overturning precedent to invalidate the law; and (3) coming up with a new theory to support the result.

In this paper, though, I’m going to talk more about the opposite scenario, in which the Court is convinced that an act is invalid but upholds it because of its popularity or because of threats from the elected branches.  (I don’t have a nifty term for this category yet, though I’m thinking that “white flag opinion” might work.) These cases display several unusual traits, such as: (1) bending over backwards to avoid deciding an issue that is squarely presented; (2) finding a violation of a right but denying a remedy; or (3) writing a very brief opinion that avoids a discussion of the merits.  Some examples include Ex Parte McCardle (the Court let its jurisdiction be stripped in a case challenging the validity of military Reconstruction), The Gold Clause Cases (the Court held that the New Deal Congress could not deny gold repayment on government bonds but held that the bond-holder had no remedy), and Stuart v. Laird (the Court upheld the repeal of the Judiciary Act of 1801 without addressing serious constitutional claims under Article III).

Can you think of any other examples?


John Bingham and the Alien & Sedition Act

We think of John Bingham as a civil libertarian because he called for the extension of the Bill of Rights to the States.  Some of his views on free speech, therefore, may come as a surprise.  (They certainly did to me.)

During President Andrew Johnson’s Senate trial, Bingham (as a House manager) defended the article of impeachment that accused the President of sedition because of his criticisms of Republicans in Congress. In response to defense counsel’s argument that the charge violated the First Amendment, Bingham said that this was wrong because, in his view, the Alien and Sedition Act of 1798 was constitutional.  After pointing out that no court had held the Act invalid, he explained:

“I admit that no such law as that ought to be upon your statute-book, of general opposition and application in the country, except in a day of national peril.  That was a day of national peril.  There was sedition in the land.  The French Minister was abroad in the republic, everywhere attempting to stir up the people to enter into combinations abroad hurtful and dangerous to the security of American institutions.”

. . .

“The freedom of speech guaranteed by the Constitution to all the people of the United States is that freedom of speech which respects, first, the right of the nation itself, which respects the supremacy of the nation’s laws, and which finally respects the rights of every citizen of the republic.  . . . I stand, Senators, for that freedom of speech, but I stand against that freedom of speech which would disturb the peace of nations and disturb the repose of men even in their graves.”

Somehow I doubt that Bingham’s (qualified) endorsement of the Alien and Sedition Acts will be cited by anyone as an expression of the original understanding of incorporation.


Justice Sutherland and Originalism

One common assumption in the debate over originalism is that the theory did not exist until the 1970s.  There were originalist-sounding things in various opinions before that, the story goes, but there was no coherent explanation of that approach until Robert Bork and others got the ball rolling in reaction to the Warren Court. If you look, though, at the dissenting opinions of Justice George Sutherland, one of the “Four Horseman,” you can find an excellent description of originalism.  Let’s look at two examples:

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Illegal Immigration and Fugitive Slaves

One way of thinking about the new Arizona statute on illegal immigration is through a comparison with the debate over state regulation of fugitive slaves during the antebellum period.  Now before the angry comments start pouring in, I’m not saying that people who favor more border security are like slaveowners or that those who are here illegally are like slaves.  What I mean is that in both cases there was a controversial issue that turned on whether there should be exclusive federal authority or a diverse set of state policies.

The Fugitive Slave Clause of the Constitution was implemented initially by the Fugitive Slave Act of 1793.  By the 1830s, though, a number of free states passed laws that made it a crime to catch or aid in the capture of fugitive slaves.  Other free states insisted on certain procedural protections for those alleged to be fugitives, otherwise free African-Americans would be subject to what amounted to legalized kidnapping.

In Prigg v. Pennsylvania, the Supreme Court held that these state statutes were invalid because the Fugitive Slave Clause (even though it was not in Article One, Section 8) gave the federal government exclusive power over the subject.  In other words, states could not legislate at all on this topic — either to help or hinder slave captures.  Chief Justice Taney concurred but argued that state laws that furthered the federal policy by giving aid to slave catchers were not unconstitutional.  One could view the Court’s position as a compromise that attempted to take the entire topic off of the topic even though it was probably inconsistent with preemption principles.  Moreover, in practice slave catchers in the North could not operate well without the protection of state law or the aid of state officials.  (Indeed, Prigg contained language similar to the modern Supreme Court’s anticommandeering doctrine.)

Now we have a similar issue.  States like Arizona want to crack down on illegal immigration.  Others want to be sanctuaries for them and refuse to cooperate with deportations.  One solution to this would be to say that all state regulation of the subject is barred.  That is not neutral with respect to outcomes, but it would channel all reform efforts to Washington.  Or courts could say that only state laws that assist immigration policy as set by Congress is permissible.  Of course, that would require someone to determine what that policy is.  The major problem in immigration policy, it seems to me, is that the country is uncertain what it wants.  Is illegal immigration a harm or a benefit?  Should we be deporting people or giving them amnesty? Thus, courts that go with something other than “states can’t regulate this at all” might have a hard time reasoning their way to a conclusion.


Fragmented Opinions

When Chief Justice Roberts was nominated in 2005, there was a lot of discussion about his goal of reducing the number of 5-4 opinions.  That hasn’t worked out, but I was never sure about how much that matters.  With rare exceptions, the fact that an opinion is sharply divided is irrelevant.

Salazar v. Buono, which came down yesterday, illustrates a real problem that the Chief should work on — cases where the Court cannot produce a majority opinion at all.  That is a totally unsatisfactory result that drives attorneys, government officials, and lower court judges batty.  I wonder whether the Court should adopt a norm that if it cannot agree on a majority opinion the writ of certiorari should be dismissed as improvidently granted.  (Note that this is different from a five-person majority opinion where one member writes separately. In that case, you at least have a short at extracting an intelligible holding.)  There are instances (a case in the Court’s original jurisdiction, for example) where even a splintered decision is better than nothing, but usually that is not the case.  There’s nothing wrong with leaving the lower court opinion in place and taking up a similar issue in a subsequent case where a clear decision can be rendered.


Citation of Foreign Law

One thing I’ve always been curious about with respect to the debate about when it’s appropriate for our courts to cite foreign law is how that question was addressed right after 1776.  After all, I thought, some people must have argued then that our courts shouldn’t be citing British law because of the separation.

Turns out that this was true in some states.  For example, an 1807 Kentucky statute provided that “records and books containing adjudged cases . . . in Great Britain . . . since the fourth day of July, 1776 shall not be read or considered as authority . . . in the courts of this Commonwealth.”  And a 1799 New Jersey law did something similar.  Now what I don’t know is what courts did with these statutes or why they were ultimately repealed. Could be a good note topic for someone.


Justice Holmes and Federal Common Law

Most of you know that Oliver Wendell Holmes Jr. was not a fan of federal common law.  In South Pacific Co. v. Jensen, he dissented from an opinion holding that maritime law trumped a state statute and criticized the idea that the common law was a “brooding omnipresence in the sky” that could be created by federal courts.  (Of course, maritime law still operates this way.) This dissent was the basis for the Court’s opinion in Erie.

What you may not know is that Holmes wrote several opinions making federal common law even after his Jensen dissent.  In Baltimore R.R. v. Goodman, for example, he fashioned a rule about contributory negligence at grade crossings for a unanimous Court.  And in United Zinc. v. Britt, he applied the attractive nuisance doctrine narrowly to reject the wrongful death claims of two children who went swimming into a pond filled with chemicals.  Indeed, Justice Butler’s dissent in Erie cited these two cases to show that Holmes could not have really meant what he said in Jensen.

This illustrates a jurisprudential point that probably does not get enough attention.  We focus a lot on how judges should treat precedent, but we don’t do the same for the question of what they should do when they dissent and then are asked to extend or apply the precedent they dissented from in a subsequent case.  My impression is that stare decisis, in practice, is weaker when judges participates in the original case than when they did not, but I’m not sure.


Killing Undesirable Innovation

Sometimes you read an article and think, “That’s so simple.  How come I didn’t think of that?”  The answer, is that somebody else was far more creative than you.  That was my reaction to Chris Cotropia and James Gibson’s paper on “The Upside of Intellectual Property’s Downside” in UCLA Law Review.

Their central point is that granting more intellectual property protection could be a good way of stifling the production of something that society deems undesirable.  Normally we think of IP in terms of how we can maximize the quality and quantity of information (though there are other factors at work).  In that context, people like me often worry that too much IP will be a bad thing.  If the product in question is something you don’t want made, however, then excessive protection that raises production costs is actually a positive.

Now I don’t agree with all of the categories of undesirable information that Cotropia and Gibson identify. For example, I don’t think fashion constitutes waste, though their article might explain the otherwise wrongheaded proposal to give more protection to fashion designs.  Maybe it’s a Trojan Horse to kill the fashion industry! (Probably not, which is why I don’t like the idea.)  And there are First Amendment implications that need more explanation.  Suppose Congress extends broader copyright protection to pornography and says, “We’re doing this because we want less of it.”  Looks like a First Amendment problem to me.  Nevertheless, the article is definitely worth your time.


Race and the Court-Packing Fight

I just finished reading Jeff Shesol’s book on FDR’s Court-packing fight.  It’s terrific and provides a lot of interesting chestnuts that I’d never seen before.  One thing I’ve always wondered about is why people felt so committed to the Court in a world before Brown and before the application of much of the Bill of Rights to the States.  In other words, what did those who defended the Court as a defender of minority rights cite at a time when judicial protection of property rights was so unpopular?

One answer was that Southerners argued that the Court was what “saved” the region from the Civil Rights Act of 1875 and other Reconstruction legislation.  In fact, during the Senate Judiciary Committee hearing on the plan one Senator said that the object of Court-packing was school desegregation. That line of attack was still potent in 1937, and illustrates how politics makes strange bedfellows, as many liberals joined with these southern conservatives to thrwart the President’s proposal.


Dissenting Without Opinion

It used to be a common practice for Supreme Court Justices to dissent without writing an opinion.  Today we would think that this was strange, and as far I can tell the change came around 1940 with the retirement of the “Four Horsemen” who opposed the New Deal.  Why was this norm for judicial behavior abandoned?

First, prior to 1925 the Court did not have discretion over its docket.  As a result, the Justices heard a lot more cases than they do now.  Furthermore, many of those cases involved federal common law (torts, contracts, etc.) that were relatively unimportant.  Under those conditions, people were probably more tolerant of a Justice who simply noted his position and saved the written opinions for important cases. Second, Justices in that era only had one clerk (or before that none).  Thus, if a member of the Court was elderly or ill there would be every reason to think that he could not write.  Today (though we don’t say so explicitly), there is a stronger expectation that such a Justice can still produce opinions.

Are there any other possible explanations?