Author: Gerard Magliocca


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UPDATE:  They appear to be working now.


Electoral College Reform

In reading the 2012 Republican Platform, I was surprised by this passage:

We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

I did not realize that the GOP even had a position on this.   The constitutional analysis of this question is actually quite complicated, though there is no indication that enough states will join this initiative to present a justiciable case (if it is justiciable).  While I understand the reasoning behind support for the Electoral College, I think the last line about “corruption in every ballot box” is absurd.


A Patent Collective Rights Organization

There was an article in the Washington Post the other day discussing a plan by the founder of to create a collective rights organization for patents.  His contention was that patents in the United States are too hard too license, which leads to many innovations going unused and encourages patent troll litigation.

I hope his project succeeds, but I doubt that it will.  Unlike a successful CRO such as ASCAP, the complexity of running one for patents is exponentially greater.  Patents cover a vast range of subject matter and the value of many patents is hard to ascertain.  Songs, by contrast, are very similar to each other and can be administered through a reasonably predictable rate schedule.  One could imagine a CRO that focuses on a specific type of patent, but even that seems hard.

I’m not sure that we have too many unlicensed patents.  We just have too many patents, though the Supreme Court’s decision in Alice Corp. has significantly limited software patents.


Turning Down a Supreme Court Seat

109px-GovernorMarioCuomoIn the past few days Mario Cuomo and former Senator Edward Brooke passed away.  Both of their obituaries indicate that they were offered and turned down a seat on the Supreme Court.  Someone like me is bound to ask why any healthy person would do that?  I can think of a couple of plausible reasons:

1.  “I can be president.”

If you’re Hillary Clinton in 2009 and President Obama wanted to make you a Justice, then you might well say no.  Justice Arthur Goldberg, on the other hand, was the last sitting Justice to suffer from this delusion.

2.  “I need money.”

A lawyer I once worked with turned down an offer of a federal district judgeship.  When I asked why, he said he had an ex-wife and kids to put through college.  He couldn’t afford to be a judge.  Justice Abe Fortas suffered from this flaw–he should have stayed in practice.

3.  “I would hate being a judge.”

This is the most complex answer.  Some people might just love the action of political life.  Or they might care deeply about foreign policy or economic issues that are not part of a Justice’s usual work. Or they might find much of the caseload dull and technical.  This may well explain why Cuomo or Brooke did not want to be on the Court.

4.  “I have skeletons in my closet.”

Enough said.

5.  “I can’t handle the stress.”

Justice Whittaker (who resigned after four years on the Court) is the poster child for this issue.

As far as I know, Cuomo is the last person to turn down an offer to join the Court, though it is hard to know if others since then have asked not to be considered.



A Supreme Court Hack

No, I’m not talking about a particular Justice.  The recent hack of Sony Entertainment. combined with Chief Justice Roberts’ Annual Report on the Judiciary, leads me to wonder how the Court should handle a leak of its work product prior to issuing an opinion.  The Chief focused on the Court’s use of technology (or lack thereof) in his report, and security is obviously an important technology issue.  If someone obtained draft opinions, emails, the vote in conference, etc. and disclosed that to the public, what should be the response?

For example, should there be reargument to address points made in the draft opinions?  Supplemental briefing?  Should the Court just affirm without opinion?  Recuse themselves and set up a special appellate panel to render a final judgment?

Somebody could write a fun paper about this.



National Party Platforms and the Constitution

I decided recently that I should read all of the major party platforms going back to 1840 to see what I would learn.  From time to time I will post about what I find.  (Though you can read them at this link if you are so inclined.)  Party platforms used to be very important and fairly concise, though today they are unimportant and full of blather.  The 2012 GOP Platform, for example, is 62 pages long and I doubt anybody bothered to read it.  I suppose the decline of party platforms can be traced to the disastrous 1968 Democratic National Convention, though I am not sure if that hypothesis is correct.

What have I learned so far?

1.  Puerto Rican statehood used to be mentioned often in the platforms of the two parties.  Why this stopped is unclear to me.

2.  The ante-bellum Democratic platforms repeated (until 1856) President Jackson’s position that the Bank of the United States was unconstitutional, and also referred every time to the Alien and Sedition Acts as an example of an unjust law.  I thought the latter point was notable since this continued long after 1800.

3.  The first reference to the Bill of Rights came in the 1936 Republican platform.

More later.


The Crystal Ball for 2015

In thinking about national politics for the upcoming year, the Supreme Court is the wildcard.  What will we be talking about during the first half of the year?  The usual suspects probably–taxes, immigration, foreign policy, climate change, etc.  If King v. Burwell goes against the Administration, though, we will be talking about nothing but health care in the second half of the year.  We will have no choice, as Congress and most of the states will have to come up with a response to the loss of subsidies for millions of people.  If King goes the other way, though, then we won’t be talking about health care much at all.

I haven’t a clue as to what the Court will do in King.  Oral argument in March will either be very anticlimactic or thrilling–stay tuned.


Secession in Maine

Lately I’ve become interested in the secession of Maine from Massachusetts.  Maine was a part of Massachusetts until 1820, and became “independent” following a referendum authorized by the Massachusetts legislature.  Why did Maine vote yes?  One factor was that during the War of 1812 Maine suffered at the hands of the British while “Massachusetts South” did little to protect their northern region.  Maine was also geographically distinct and Jeffersonian in its politics, in contrast to the Federalists in Boston.

Here is why I find this story interesting.  There was nothing in the Massachusetts Constitution about secession.  Nevertheless, people evidently felt that secession was constitutional so long as the mother country and the breakaway region agreed to separation.  Some other early examples of this include Kentucky and Tennessee, which were formed from lands from Virginia and some of the other original 13 states.  It’s somewhat surprising that these cases were not raised when the South attempted to unilaterally secede from the Union.

Another notable point in Maine’s secession was the use of a referendum to make the choice.  Though the Framers were famously skeptical of direct democracy in creating our Republic, states used direct democracy long before Progressives introduced the initiative as a regular feature in many states.  Rhode Island held a referendum to decide whether to hold a ratifying convention for the Constitution (the first vote was no), and Maine voted to leave Massachusetts in a similar process.

In case this is my last post until 2015, Happy New Year to CoOp Nation.  I look forward to more frequent blogging when my paternity leave ends in January.


On Second Thought . . .

In this season of forgiveness, I come to confess error.  A few months ago, I wrote some posts arguing that the procedure for drawing congressional districts in Arizona is constitutional.  After working through the materials, though, I have changed my mind and now think that the Supreme Court should (probably) reverse in Arizona Legislature v. Arizona Legislative Redistricting Commission, assuming that the Court reaches the merits.

The dispute (in case you don’t remember) involves Arizona’s adoption of a state constitutional amendment that vests redistricting power in the hands of an independent commission rather than the state legislature.  The Legislature sued claiming that Article One, Section Four, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .” precludes a state constitution from removing that power from the Legislature.  The Court’s precedents in this area hold that “the Legislature” in this context refers to the ordinary lawmaking process under a state constitution, which can involve a Governor’s veto or a referendum that overrides the Legislature’s proposed redistricting.  Proponents of the Arizona plan want to take this a step further to say that whatever the state constitution provides for redistricting satisfies the Federal Constitution so long as the Legislature has some role, which it does under the Arizona plan.

Why did I think the Arizona process was valid?  First, I said that to hold otherwise would leave the voters of a state with no remedy for partisan gerrymandering.  If their only recourse was to go to the Legislature that was the source of the problem, then that was no recourse.  I now see, though, that this answer was too simplistic.  A state could adopt a constitutional provision that says “congressional districts may not be drawn to favor one party over the other” or the equivalent language.  This would leave the districting in the hands of the Legislature as Article I requires, but would limit that authority in a way that can satisfy concerns about partisan gerrymanders.

The second thought that occurred to me after I wrote my posts is that the Court’s precedents under Article I, Section 4 essentially say that congressional districting should be treated just like any other state legislation.  Arizona, though, is not doing this.  It created a special process without the consent of the Legislature for drawing districts.  In that sense, the procedure before the Court really is unprecedented and stands on shaky ground.

The final point that occurred to me belatedly is that proponents are essentially arguing that “the Legislature” in Article One should be read as “legislative authority.”  Legislative authority could be conferred upon anyone by a state constitution, so then whatever the state constitution says on that score goes.  But there’s a problem with this logic.  In Article Four, Section Two, the Constitution uses the term “executive authority of the State” to describe the extradition of alleged criminals.  Thus, the Framers could have said “legislative authority,” in Article One, Section Four, but they instead chose the more specific term “the Legislature.”  I think that weighs in favor of the constitutional challenge.

While these three factors have (tentatively) changed my view on how the merits of the case should be addressed, one significant counterargument remains.  Article One, Section Four lets Congress override a state’s process for drawing congressional districts.  Accordingly, one could say that there is no judicial remedy for a state’s violation of that same provision–only Congress can act.  As Pauline Maier explained in her book on the ratification of the Constitution, folks paid a lot of attention to Article One, Section Four in 1787-1788.  This history needs to be examined more thoroughly to see whether disputes over whether “the Legislature” has acted should be deemed a political question.


Original Jurisdiction Practice

Most original jurisdiction cases in the Supreme Court involve dull territorial disputes between states, but the lawsuit filed yesterday by Nebraska and Oklahoma against Colorado is anything but.  The claim is that Colorado’s legalization of marijuana violates federal law and is an “interstate nuisance,” which is some sort of new federalism theory.

Here’s my question.  If the Court dismisses this action as not falling within its original jurisdiction, can it do that with a simple order (like a certiorari denial), or is an actual opinion required?