Author: Gerard Magliocca


Lochner What Now?

I hesitate to post about Lochner v. New York, as David Bernstein over on Volokh is the expert on the case.  But I was listening to oral argument in Griswold v. Connecticut today, and I came across this interesting exchange.

Thomas Emerson, arguing on behalf of Griswold, told that Court that he was not asking the Justices to revive Lochner.  Justice Hugo Black responded that “it sounds to me like you’re asking us to follow the constitutional philosophy of that case.”  Black then said:

“That was the one that held that it was unconstitutional, as I recall it, for a state to regulate the size of loaves of bread . . . . because people were being defrauded, was that it?”

Well, not exactly.  Lochner was about the regulation of maximum hours for bakers.  Maybe Justice Black was just old and forgetful at this point, but to me this is further evidence that Lochner was just not that well known in 1965.


The Bill of Rights in World War Two

18339_150pxI came across a speech that Fiorello LaGuardia, the famed Mayor of New York, gave on Bill of Rights Day in 1941. I thought his analysis was interesting, especially with respect to the Second Amendment:

“Could Hitler, the Mikado [Emperor Hirohito], or Mussolini remain in power if their people had freedom of speech?  Of course not. Could their governments retain power if they had a provision as to the right to bear arms?  Could they last at all if their people were free to assemble and discuss public issues?  Could they maintain concentration camps and continue a policy of persecution if they had a proviso for indictment and trial by jury.  Not at all. Could they for a moment have freedom of religion when the Mikado and Hitler are deluded into believing that they are the Ersatz for the Almighty”



Richard Nixon’s Oral Argument

203px-Richard_M._Nixon,_ca._1935_-_1982_-_NARA_-_530679The Oyez Project, run out of the Chicago-Kent Law School, is a terrific resource for Supreme Court scholars.  They have put online the audio of every oral argument going back to 1955, when the Court starting taping its arguments.  I’ve been listening to some old ones (mostly out of curiosity), and one that is weirdly compelling is Time, Inc. v. Hill, a 1967 false light case that is still used in casebooks.

Hill was Richard Nixon’s only oral argument before the Court, and he ended up losing (5-4).  I say “weirdly compelling” because it’s just fun to hear Nixon talking like an appellate advocate, going back-and-forth with Hugo Black, and so on.  Check it out if you can. Nixon starts at around the 51:00 minute mark (arguments were longer back then).


Formalities of Judicial Voting

I’ve started drafting my next book (on the Bill of Rights), and I’m not sure how that will change my blogging.  Maybe I will post less often, maybe my posts will focus on the Bill of Rights–we’ll see.

For now, though, I want to pose this question.  What must a Supreme Court Justice do to vote on some matter before the Court?  In other words, suppose a Justice is ill but still wants to participate.  Attending oral argument is not a requirement–there are many past instances of a Justice voting on cases based on listening to argument on tape.  What about attending the Court’s conference?  (Senators and Representatives must be physically present on the floor to vote).  I don’t think there is any such need–you could vote by memo.  Do you have to read the briefs?  No.

In the end, I think the answer is that a Justice’s vote counts so long as the other Justices think that it should count.  This would seem to be the precedent set by the way that the Court handled the aftermath of Justice William O. Douglas’s stroke at the end of his tenure.  For months Justice Douglas was clearly incapacitated, but he kept on trying to vote.  The other Justices eventually reached an understanding that they would never let his vote be decisive (until he resigned).

One further question–can Congress answer this question?  There is already a quorum requirement set by statute (6 Justices).  Can Congress go further and establish, for instance, that a Justice must attend oral argument to vote on an argued case?


Citing Oral Argument Questions

I want to raise a question about the citation of statements made by Justices at oral argument.  This never used to happen, in part because such transcripts were either unavailable or imprecise.  In recent years, though, you see Supreme Court opinions that cite statements made by a Justice at argument.

My question is–what purpose is served by this?  Citing something a lawyer said at argument might be valuable.  If counsel takes a position there, that can be fairly treated as a position in the litigation even if it is not stated in the brief.  But a Justice asking a question or making a statement is not taking a position.  Why, then, have the Justices taken to citing other questions?

I may look into this further, as I find the issue of transparency (or lack thereof) about oral arguments and hand-down days fascinating.


Strange State Constitutional Provisions

I’m reading through state bills of rights as part of my book research, so this may become a regular series.  Let’s start with Article One, Section 2b of the New Jersey Constitution, which states:

“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.”

So with respect to members of Congress, this clause is clearly invalid.  A state cannot recall a member of Congress before their term is up.  A state legislature could petition the relevant House of Congress and ask it to expel the member (that would trigger a special election), but the decision would rest there.

Now I suppose a state could hold a symbolic recall of a Representative or Senator (sort of like a vote of no confidence), but that seems odd.


The Anti-Novelty Doctrine

I’ve been catching up on what’s new in the law reviews, and I want to recommend Neal Katyal and Thomas Schmidt’s paper in Harvard on “Active Avoidance.”  Much of the article provides a well-deserved critique of the Court’s recent practice of reading statutes in absurd ways to avoid constitutional difficulties.  The paper also points out that in these cases the Court introduces new constitutional arguments in dicta to explain those alleged difficulties, which do not get adequate attention then but then get cited later as authoritative.

Another part of this article that deserves more scrutiny is its attack on the Court’s recent cases suggesting that a law which is novel should be presumed unconstitutional.  I’ve blogged in the past about this idea, which showed up in the Affordable Care Act case (on the individual mandate), the challenge to DOMA, and some other decisions.  I’m not sure how I come down on the “anti-novelty” doctrine, but it is true that this idea clashes with the general presumption of constitutionality.


The Certiorari Grant in Fisher

I’d been meaning to say something about the not-so-new affirmative action case, but writing a book review knocked me offline for a while.

The new grant of cert in Fisher is peculiar.  Media reports suggest that the last time around the Court was going to issue a stronger opinion curtailing the use of race-conscious admissions policies.  Faced with a sharp dissent from Justice Sotomayor, though, the majority backed down and (after extended wrangling) produced a brief opinion remanding the case to the Fifth Circuit.  Now we get another grant (after the Fifth Circuit reaffirmed its prior holding).

It’s worth noting that this second grant is problematic in a couple of respects.  First, there’s a certain waste of resources in going through a second round of briefing and argument in the same case.  Sure, the briefs will be freshened up a bit, and you have a new circuit opinion as well, but the Justices are largely spinning their wheels.  Second, there is the awkward fact that Justice Kagan is recused because she worked on the case as Solicitor General.  (Indeed, you would think that this is the last case that will prompt her recusal for that reason.)  Any other challenge to university admissions accepted by the Court would have been decided by all nine Justices–perhaps that would have better.  Finally, Fisher has always struck me as a poor vehicle for thinking about race-conscious admissions given the structure of Texas public schools and the way the UT plan was designed.

So what’s going on?  Could it be that the current majority (that is, the one that did go forward the first time) is aware that there may not be another opportunity to take a stand before there is a different majority?  Or is this a situation where (as with campaign regulation and the Voting Rights Act) the Court will use Fisher I as authority for a broader ruling in Fisher II, but was not comfortable doing that without a Fisher I?


Equal Constitutional Status

I want to pick up on a line of thought in the comment thread to one of my prior posts on separation of powers.  What do we mean when we say that the three branches are equal?  Probably we are saying that they have the same status.  For example, as Orin Kerr points out, each nation-state is equal to another as a sovereign.  We don’t mean by that, of course, they they have equal power.  We mean that they have equal rights in some respects and equal (dare I say it) dignity.

Let’s set aside the question of whether the Framers thought that the three branches were equal in this sense.  What I’m wondering is at what point interpretation based on status becomes fictional?  Here’s an example.  Are the two Houses of Parliament coequal?  You could say yes.  A bill must pass each house to become law.  Each House has its own chamber and its own rules.  But you could also say no.  The House of Commons can legally abolish the House of Lords.  The Lords cannot do that to the Commons.  That doesn’t look like coequality. So which is the better answer?

Federalism also complicates matters.  Nobody thinks that Congress and Delaware are of equal rank.  Nevertheless, Delaware has certain rights that Congress may not invade.  So the fact that an entity has autonomy does not make it equal in that formal sense.  Why couldn’t the same be true among the three branches?  Congress could be the superior branch, but it cannot do certain things to the others.

One answer to that is that the Supremacy Clause makes the hierarchy clear with respect to the federal government and states.  There is no equivalent text that says that Congress is the #1 branch.  At best, you’d have to say that congressional superiority (or the lack of coequality) is implied.  But coequality is also just a construction.  So why did people adopt that view?  Did the Framers have that view?  We’ll see.