Author: Gerard Magliocca


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.


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.


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?


A Judicial Conniption


Justice Thomas’s concurring opinion today in Davis v. Ayala is quite extraordinary.  In response to Justice Kennedy’s concurrence that attacked the practice of extended solitary confinement (not an issue raised in this case), here is what he said:

I join the Court’s opinion explaining why Ayala is not entitled to a writ of habeas corpus from this or any other federal court. I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.

It is true that convicted murderers get treated a far sight better than their victims.  I’m not sure what that’s supposed to prove though.


More on Signed Appellate Opinions

Paul Horwitz has written a characteristically thoughtful post over at PrawfsBlawg on the issue that I raised the other day about whether we should still permit per curiam opinions.  I have a couple of additional observations on my end:

1.  Without signed opinions, outsiders would find it hard to assess the quality of individual appellate judges.  This matters when you want to think about possible candidates for promotion.  Instead, you’d have to rely on insider information that would be less reliable (“I heard from so-and-so’s law clerk that Judge X wrote that opinion.”).

2.  There is an exception to Point #1.  When judges sit on panels of three, the dissenter would always be named.  Thus, what we’d know about appellate judges would come largely from their dissents.  Or one could imagine more separate concurring opinions if that was the only way to get one’s name out for public consumption.  I’m not sure that this be a great system for assessing judges.

3.  Why do people care that a given opinion was written by Henry J. Friendly?  I think the answer is that they think that opinion will just be better.  While all panel opinions are formally equal, that does not mean that they are equally useful.  Knowing the judge’s reputation (good or bad) reduces search costs for attorneys and scholars, and that matters in the real world.

One last thought–there is a strong argument in favor of anonymous publication as a way of forcing people to focus on the arguments and not on the personalities.  (Hello, Publius.)  Of course, that argument could apply just as well to law review articles as it does to opinions.





Conspiracy in the Lincoln Assassination Trial

On Friday, the DC Circuit issued its decision in Al Bahlul v. United States.  The opinion held that Congress exceeded its Article I powers by authorizing a military commission to try a Guantanamo detainee for the crime on conspiracy.  I cannot claim any special expertise on this question, but the dueling opinions (Judge Rogers for the Court and Judge Henderson in dissent) do address one point that I know something about–the trial of John Wilkes’s Booth’s accomplices.  We are in the midst of the 150th anniversary of that military trial, which I spent a chapter discussing in my biography of Bingham.

The Court declined to rely on the Lincoln assassination military trial as authority for Al Bahlul’s conspiracy conviction, and I think that this was correct.  First, the assassins were not charged with conspiracy.  The actual charge was “traitorous conspiracy,” not conspiring to commit treason.  What is that?  Basically, it was a charge invented just for them to avoid Article III’s requirements for proving treason while still conveying the idea that they had done something treasonable.  The dissent (which oddly spends a lot of time citing Chief Justice Rehnquist’s book that discusses the Lincoln trial, rather than the primary sources), errs in reaching the opposite conclusion.

Moreover, the Lincoln assassination commission was filled with irregularities and thus is not a precedent people ought to read broadly.    The District Court opinion that rejected the habeas corpus petition of some of the convicted men was not convincing, and even if it was right the special circumstances presented by the murder of the President in wartime are far removed from the cases of the Guantanamo detainees.


Per Curiam Opinions

The decision of the Fifth Circuit–sure to be before the Supreme Court next Term–upholding the new Texas abortion regulations raises the question of whether per curiam opinions should still exist.

If a decision is truly a joint work (say by all three members of a panel), then perhaps that title makes sense. I think the “Joint Opinion of X, Y, and Z” is better, but that’s a semantic point.  Appellate courts, though, should not be calling an opinion “per curiam” to shield its author from identification.  We deserve to know who wrote a published opinion.

The only plausible rationale for not identifying an opinion’s author is that in organized crime or terrorism cases judges may fear retaliation.  But this is a rare circumstance.  More often what they probably fear is public scrutiny and accountability.


Thoughts on Zitovsky

I did not have this case in my top tier of ones that I’m following this term, but let me throw out a couple of observations.

1.  There is a question about whether Zitovsky had standing, as Will Baude explained in a recent NY Times op-ed.  None of the Justices said anything about this, which is one more piece of evidence for the idea that standing doctrine in the Supreme Court is only prudential.

2.  Not much was accomplished here by judicial action.  The Court would have been better off going with the idea that this is a political question (that point was rejected in a prior Supreme Court case on the same facts).  Both here and in Noel Canning the separation-of-powers question was intellectually interesting, but that’s all.  Congress and the Executive have been clashing over diplomatic issues since the dawn of the Republic–they can work it out on their own.

3.  Chief Justice Roberts’ opinion has the better of the argument.  Since Congress can take many valid actions that undercut diplomatic recognition, such as not funding an embassy, refusing to confirm an ambassador, or letting an unrecognized government leader speak to a Joint Session, I don’t see why passports are any different.  Justice Kennedy’s opinion is not persuasive on the point.



The Presumption of Constitutionality

As part of my research on separation of powers, I’ve been asking myself the following:  Why is an Act of Congress presumed to be constitutional?  The Supreme Court has said that this is true many times, and this presumption is important. Randy Barnett made a major contribution by pointing out that you could instead have a “presumption of liberty” in certain situations.

Here are two possible defenses of the constitutionality presumption:

1.  If the democratically elected branches agree that a law is constitutional, then that call is entitled to a presumption of validity.

2.  If two of the three branches agree that a law is constitutional, then that judgment is entitled to some deference.

One of these ideas draws a distinction between the elected and unelected branches.  The other is just a question of numbers (two versus one).

But there is a problem with these answers.  Congress can unilaterally enact a statute with a two-thirds majority in each House.  And a law that came from an override of a presidential veto would still get a presumption of validity.  Now a response to this could be,  “Two-thirds of two houses of Congress is the equivalent of two of the three branches, or that sort of lopsided majority gives the statute enough democratic legitimacy to earn a presumption of validity.”  Maybe, but I’m not sure.

Another possible answer, though, is that Acts of Congress deserve the benefit of the doubt is that Congress is the superior branch.  That is true whether the President signs the bill into law or not.  Since I’m making the “the three branches are not equal” argument in my paper, I am drawn to this explanation.  But I need to think more about why Acts of Congress are presumed valid.