Author: Gerard Magliocca

5

Undue Burden and Federalism

Before saying more on the cases just decided, I want to throw out an observation about the Texas abortion regulations that were stayed by the Court yesterday.

Suppose that Rhode Island put strict limitations on abortions.  If that statute were challenged under the “undue burden” standard set forth in Casey, one response could go something like this.  “Hey, all of our neighboring state have broad access to abortion.  We’re tiny, and so getting from Providence to another state takes hardly any time or cost.  Therefore, no undue burden is being imposed.

Does this argument work?  The reason I ask is that in Texas the opposite is true.  It’s a huge state, many of the neighboring states do not have broad abortion access, and thus it would be costly and time-consuming to go elsewhere for an abortion.  Thus, you could say that an undue burden is being imposed.  If this is so, though, then wouldn’t you have to say that small states with a pro-choice neighbor would have greater leeway to restrict abortion than large states?

10

Death Penalty Free Riding

With the constitutional debate on the death penalty now back on, I want to make an observation about that punishment that flows from the recently completed Boston Marathon bomber trial.

It seems to me that the DOJ’s decision to seek the death penalty in a state that does not have capital punishment sets a precedent that could undermine that regime nationwide.  Suppose you’re in a state that is thinking about getting rid of the death penalty.  A good reply to that idea is that every once in a while there is a really heinous crime that merits a death sentence.  (The alleged killer in Charleston comes to mind.  So does Timothy McVeigh).

Not a problem, an abolitionist can say.  The DOJ will seek the death penalty in such a case.  In a really terrible crime, some ground of federal jurisdiction can be found.  In effect, states can just free ride on the federal government for “the worst of the worst” cases.”  No need to  maintain the expense of state death row, post-conviction review, or an execution method.

Not all states will feel this way, of course.  Some will say that the DOJ will not seek the death penalty often enough.  Or they might say that there can be horrible killers who would not trigger federal jurisdiction somehow.  My point, though, is that many states that have the death penalty but use it rarely might conclude that the DOJ can be safely entrusted with this discretion.  I wonder if we will see that argument made more often in the coming years.

 

1

The Arizona Legislature Case

I was surprised by the outcome, the reasoning in the opinion, and that there were two votes (from Scalia and Thomas) to dismiss the suit for lack of standing.  In the end, I wonder if the Court should have just said “no standing” and left the status quo in place (in other words, the result would have been the same without needing to reach the merits).

UPDATE:  After reading the opinions again, I’m persuaded by the argument that there was no standing and that the Court should not have reached the merits.

1

Revisiting Capital Punishment

I want to go through the opinions on the three-drug protocol more carefully, but I will say that I’m not persuaded (and never have been) that the death penalty is unconstitutional across the board.  Whether the states or the federal government should choose to have the death penalty is a different matter, but I think Justice Scalia has the better of the constitutional argument with Justice Breyer.

I wonder if this means that Breyer and Ginsburg, like Brennan and Marshall before them, will dissent in every new death penalty case.  Or is there a distinction between asking for briefing (as they did today) and actually taking the position that the death penalty is unlawful?

1

Same-Sex Marriage Whoppers

Let’s turn to the same-sex marriage decision.  I’ll have a separate post on the Court’s opinion later.  Basically, my thought is that it reads like a lot of Justice Kennedy’s decisions, unfortunately.

With respect to the dissents, I want to make two points.  The first is that the Chief Justice’s dissent is greatly weakened by its cliched use of Lochner.  It’s as if he decided to repeat what he learned about the case in law school thirty-five years ago and thought that was a winner.  It’s not.  His story is riddled with historical inaccuracies (I’m sure David Bernstein will have more to say about that) and that charge no longer packs a wallop anyway.

Second, Justice Scalia’s dissent loses much of his credibility when he says at the outset that he personally does not care whether same-sex marriage is legal or not (as a policy matter).  I don’t believe that, and I think that few who read the opinion do.  Moreover, I find his speeches about the Justices usurping democracy to be getting rather tiresome.  He reminds me of a coach that the players no longer listen to.

0

Where to Begin?

I’ll have several posts this week on the work of the Court.  Let me start by addressing King v. Burwell.

The debate over the Affordable Care Act is now closed.  Sure, some people will make noises next year about repealing the law, but that’s not going to happen.  As Justice Scalia suggested in his dissent, the ACA will probably attain the status of the Social Security Act or the Taft-Hartley Act (the latter is an interesting choice–more on that another time.)  I’ll leave the discussion of the opinions themselves to people who are more expert on statutory construction.

I do have one thought to offer about Chief Justice Roberts’s role in saving the ACA.  In 2005, Justice O’Connor retired and John Roberts was nominated as her successor.  While that nomination was pending, Chief Justice Rehnquist died and Roberts was nominated as the Chief.  I wonder if that was a fateful choice.  Would Associate Justice Roberts have voted the same way in Sebelius?  Associate Justices get a sort of herd immunity if they do not write the Court’s opinion.  They do not bear the same institutional burdens as the Chief Justice.  Now maybe any Chief Justice fill-in-the-blank nominated by President Bush would have felt the same pull to not strike down the ACA by a 5-4 vote, but that is hard to know.  Hopefully, I’ll live long enough to see the papers on the internal deliberations in Sebelius opened for scrutiny.

1

Good Thing This is a Slow Week

I will be leaving for a family vacation tomorrow, and thus I doubt that I will have any instant reaction to the cases that are handed down tomorrow and Friday.  I’m not clear whether Friday will be the last day in any event.

3

Reading the Tea Leaves

I want to make an observation about the remaining cases in this Supreme Court Term. From the February sitting, there are two undecided cases.  One is King v. Burwell.  The other is the Arizona redistricting case.  There are, though, three Justices who have not written a majority opinion from that sitting.  (The Chief Justice, Kennedy, and Ginsburg).  This strikes me as odd-somebody may have lost a majority along the way in one of those cases or in one that was already decided.

By contrast, from the January sitting there is only one undecided case (The Fair Housing Act/disparate impact case), and the only Justice without an opinion from that sitting is Justice Kennedy.  So he should have that one.

5

The Bill of Rights as a Justification for Power

A point that I’ve developed in my new draft and that I’ll be discussing further in the next book is that the Bill of Rights does more to expand the power of government that to limit power.

How can that be?  While the provisions in the Bill of Rights are about limiting government, the use of the “Bill of Rights” brand to describe those provisions is rather different.  In practice, people refer to the Bill of Rights to justify government action.  It’s OK to do something, the argument goes, because there is a bill of rights.

Consider some examples:

1.  When people want to justify the exercise of emergency powers or special national security powers, they say “The Bill of Rights is not a suicide pact.”

2.  When the United States acquired colonies after the Spanish-American War, opponents of imperialism were mollified when Congress extended a “bill of rights” to the Philippines, even though that bill of rights was not the same as ours and was not observed all that much.

3.  When Franklin Roosevelt defended the New Deal, he often did so by observing that the government’s new initiatives did not violate the Bill of Rights.  Therefore, he said, those extensions of authority were perfectly fine.

In these example, the Bill of Rights is mainly a symbol.  Consider the following thought experiment.  Suppose a country were drafting a new constitution and I said that it would not include a bill of rights.  Would you be skeptical?  Probably.  Suppose, though, that this draft included all of the things you would want in a bill of rights but just called them something else or didn’t use that term.  What does the term add?