Author: Gerard Magliocca


The Attention Merchants

I just wanted to note that Tim Wu (author of The Master Switch and widely credited with developing the idea of “net neutrality”) has a new book coming out this Fall entitled The Attention Merchants:  The Epic Scramble to Get Inside Our Heads.  It’s available for pre-order here.


What Exactly Are Pledged Delegates?

Donald_Trump_August_19_2015In discussions of how a brokered convention might work for the GOP presidential nomination, a standard analysis goes like this:  On the first ballot, delegates must vote for the candidate to which they are pledged based on whatever allocation formula was used in their state.  On any subsequent ballot, they can are free to vote for anyone.

Here’s my question:  What happens if someone does not vote for who they’re supposed to on the first ballot?  Is there any sanction?  Does the vote not count?  I think the answer to both is no.  There actually is no such thing as pledged delegates–there is just social pressure and sanctions, just as there is for presidential electors who think about voting for “somebody else.”

I only bring this up because it could matter if Donald Trump gets over 50% of the delegates heading into the convention by only a small margin.  (Say, he has ten more than he needs.)  Those ten could be persuaded to change, though there is the obvious problem that this would lead Trump and his supporters to scream bloody murder about cheating.


Papachristou and Vagrancy

Justice_William_O_DouglasI just finished Risa Goluboff’s tour de force on the campaign to reform vagrancy law, and one of the many terrific insights in her book is that Justice Douglas’s opinion for the Court string down vagrancy statutes as unconstitutional in Papachristou v. City of Jacksonville crystallized the spirit of the 1960s in a way that few other opinions do.  I hadn’t thought about Papachristou after reading it in law school, but Risa’s article a couple of years ago that discussed the connection between that case and Roe v. Wade got my attention.  On her broader claim about the decision, consider some passages from the opinion:

Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be “casing” a place for a holdup. Letting one’s wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence.

Or this one:

Those generally implicated by the imprecise terms of the ordinance — poor people, nonconformists, dissenters, idlers — may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98. It results in a regime in which the poor and the unpopular are permitted to “stand on a public sidewalk . . . only at the whim of any police officer.” Shuttlesworth v. Birmingham, 382 U. S. 87, 382 U. S. 90. Under this ordinance,

“[I]f some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant.” Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 226 (1967).


The Roots of Enumerated Powers

The first piece of my research on the Bill of Rights will be coming out in Notre Dame Law Review later this year or early next year. I want to make an observation that is not in that paper but will be in my book.

We treat the principle that Congress is limited by the enumeration of its powers in Article One as a constitutional axiom, even though those powers are now read very broadly. It seems clear to me, though, that this idea first emerged in response to the Anti-Federalist attack on the Constitution for lacking a bill of rights. In other words, prior to the Constitutional Convention there was almost no discussion of using enumeration as a tool to limit federal authority.  Moreover, there was almost no discussion of this during the Convention itself.  Thus, it’s not clear that the Convention delegates thought that enumeration was a constraint on Congress–they probably thought that bicameralism, a presidential veto, and the way elections would be conducted were the real constraints.  Their tune changed after the proposal was made.

There isn’t any punch line to this–just more of an academic point.


Eligibility to Run for Congress

For the first time since I went into teaching, I took on a pro bono client and argued for her at a hearing before the Indiana Electoral Commission.  I thought I would talk about the issue here, now that the ruling is final–we lost and there will be no appeal.

My client wanted to run for the House of Representatives.  She will turn 24 next month.  The argument against her eligibility is that Article I of the Constitution provides that a member of the House must be at least 25.  Counsel for the challenger took the position that this (and the state statute on ballot eligibility) meant that she had to be 25 by the first day that the next Congress convened (Jan. 3, 2017).

Our position was that the Constitution only bars someone from serving until they reach 25.  In other words, my client was eligible to run so long as she would turn 25 sometime during the term to which she was elected.  The seat would just be vacant until her birthday.

In support of this claim, I pointed out that the Senate seated Rush Holt of West Virginia (who was elected in 1934) even though Holt did not turn 30 (the minimum age for a Senator) until June 1935.  The Senate rejected a challenge to Holt’s eligibility and said only that he could not serve until he turned 30.  (When he did, he was sworn in and served out his term).  Likewise, the House of Representatives seated John Brown of Kentucky (who was elected in 1858), even though he did not turn 25 until June 1860.  (When he did, he was also sworn in and served out his term.)  In no instance had the House or the Senate refused to seat an elected person on the theory advanced by the challenger in my case, and there was no case law to support the challenger’s position.

The Commission ruled in favor of the challenge.  They do not issue written opinions, so I’ll do my best to parse what they said.  I think they thought that our state statute should be read to say that to run you had to be eligible to serve on the first day of the new Congress, and thus the precedents that I cited were not controlling.  I am at a loss to explain why they thought that our statute should be read in this way, as there was no authority on that point.  I think they just thought my client had no chance of winning so hence it was OK to kick her off the ballot.

Now can a state do what the Commission was suggesting?  Maybe.  A state could say that it wanted to be fully represented in Congress, and thus might not want to give ballot access to someone who could not start on Day One.  Would that requirement violate the Eligibility Clause?  (Put another way, do the House and Senate precedents foreclose a state from blocking people such as Brown and Holt from being on the ballot?)  I’d want to give that more thought.  But Indiana definitely did not do this in its ballot statute, and the challenge should have been rejected. Alas . . .



Setting Cases for Re-Argument

One more thought before I call it a night.  An option for the Court is to set cases that are divided 4-4 for re-argument after a new Justice is confirmed.  (Tom Goldstein gives some examples over on SCOTUS Blog.)  I gather that there is no limit to how long this could take.  In other words, if the Court says, “See you in the Fall of 2017,” that can be done.  I would think that this approach only makes sense if there is a circuit split that must be resolved.  Other cases (most notably the   litigation to overrule Abood) will just affirm the lower court without opinion.


What about Fisher?

One of the many puzzles created by Justice Scalia’s death is that the Fisher case (on racial preferences in admissions at the University of Texas) is now down to seven Justices.  (Justice Kagan is recused since she was involved in the litigation as Solicitor General.)

The Court’s rules clearly permit a seven Justice Court to issue a 4-3 decision, but I’m struggling to think of a significant case that was decided on this vote.  When the Court was down to seven Justices in 1971 after the death of Hugo Black and the retirement of the gravely ill John Marshall Harlan, significant cases were set for re-argument before a full bench of nine (including Roe v. Wade).

An obvious problem with a four Justice holding is that it is unstable.  (There’s also something odd about four Justices, in effect, overruling or cutting back a holding made by five.) Setting Fisher down for re-argument won’t help if the new Justice just creates a 4-4 split (Kagan will still be recused).  Besides, I highly doubt that the Court will want to have a third argument in Fisher.

Probably they should just dismiss the writ as improvidently granted, but I suspect that’s not what will happen.



Justice Scalia’s Papers

When I wrote to each of the Justices last year to ask how and when they planned to make their papers available to future researchers, Justice Scalia did not respond.  I hope that he did make some sort of arrangement about this before he died.


Additional Thoughts on the Passing of Justice Scalia

In addition to what I’ve posted at Balkanization, I want to add a couple of further technical things.

  1. Some discussion is already underway about the relevance of Justice Abe Fortas’s inability to get confirmed as Chief Justice Earl Warren’s successor in 1968 (another presidential election year). I recently published a short paper on “The Legacy of Chief Justice Fortas” that talked about this precedent.  There is a significant difference between that situation, which involved a voluntary retirement, and this one, which does not.
  2. What does the Court do with all the argued cases this Term that are divided 4-4?  Issue a per curium that says “affirmed by an equally divided Court” or dismiss the writ as improvidently granted?  I think that they have the same legal effect, but I’m not totally certain.
  3. The stay issued on the climate change regulations, of course, remains in place.  I assume that the same is true for any 5-4 decided case with Justice Scalia in the majority, even if the mandate has not issued.  I’m not sure about the latter though.
  4. Presumably, we will know the outcome of any controversial case almost immediately.  If the Court does not DIG or affirm by a 4-4 vote, then that must mean a majority exists without Justice Scalia (kind of a clear tell).  Of course, the Court could decide not to issue the 4-4 decisions until the end of the Term, which would preserve the confidentiality of the other results.

Staying Alive

I’ve made a related point before, but I think it’s misguided for the Court to issue a stay on an issue as important as the regulations to implement the climate change agreement without an explanation.

While the Justices cannot be expected to write on every motion that comes before them, on matters on great importance they should not hide behind the fig leaf that a stay is not a decision on the merits and thus requires no opinion. The four dissenters on the climate change stay are equally in the wrong–they should also have explained their reasons or contested what the majority did.