Category: Supreme Court


Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.

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Defending Oneself

Tomorrow, the Supreme Court is scheduled to hear argument in a case, Indiana v. Edwards, involving a criminal defendant’s constitutional right of self-representation. I hope to talk about the specific issues raised in Edwards in a later post, but I first wanted to discuss my general (and evolving) views on the right of self-representation. Despite my initial resistance to the whole concept of self-representation, over the course of the last several years, as I have thought (and written) on the constitutional right of self-representation, I have come to believe that it is a fundamental right of criminal defendants without which our criminal justice system would lack legitimacy.

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What the Opinions May Look Like in D.C. v. Heller

Predictions based on oral argument are always highly tentative. With that caveat, here’s my best guess after listening to the Heller audio on C-SPAN:

A 5-1-3 decision in favor of Mr. Heller.

A five-Justice majority opinion authored by Chief Justice Roberts or Justice Kennedy (so I agree with Orin Kerr on the likely authorship) joined by Justices Scalia, Thomas, and Alito. The opinion will uphold the individual rights view of the Second Amendment, recognizing self-defense as a protected purpose of the right to arms, and invalidating at least some of the challenged provisions of D.C. law. The Court will distance itself from U.S. v. Miller and Miller‘s suggestion that the scope of protected “Arms” is closely dependent on what constitutes ordinary military equipment. What we’ll get is a constitutionalization and moderate expansion of the post-1689 English right to arms. Justice Kennedy particularly seemed to favor this sort of approach.

(Justice Thomas will probably concur separately to assert a very robust conception of the Second Amendment right to arms. If the majority opinion does not address the proper standard of review for Second Amendment cases, Justice Thomas will write separately to urge that strict scrutiny be applied. Justice Scalia may join this concurrence.)

Justice Breyer will write for himself only, in an opinion that will probably be styled as a concurrence in part and dissent in part. He will agree with the majority that the Second Amendment protects an individual right that can be asserted outside of the context of active participation in the militia, but will argue that the right is nonetheless closely focused on civic purposes, not self-defense. Since D.C.’s laws restrict armed self-defense but still permit individuals to keep rifles and shotguns for other purposes, Justice Breyer will reason, D.C.’s regulations are reasonable.

Justice Stevens will dissent, in an opinion joined by Justice Souter and Justice Ginsburg. These three Justices will basically accept D.C.’s position: the Second Amendment may confer an individual right to arms, but it is not a right that can be asserted outside of the context of participation in a state-regulated military organization.

(I am hesitant in assigning Justice Ginsburg to this position. She may agree with Justice Breyer, yielding a 5-2-2 configuration.)

More later.

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Media Note: I’ll be appearing tonight to discuss Heller on NRA News’s program “Cam & Company” at 9 p.m. EST. You can watch and listen to the program live at that time at this link.


Where’s Lexington and Concord in D.C. v. Heller?

Minute_Man_tn.JPGMike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

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Thoughts on the Eve of Argument in D.C. v. Heller

Dawn.JPG1. Cruz v. Clement. If you believe Robert Novak, the Solicitor General’s split-personality amicus brief in Heller resulted from wrangling between the Office of Legal Counsel (which favored a robust individual right) and career attorneys in DOJ (who didn’t).

What made the brief disappointing to gun rights supporters was not the DOJ’s defense of the constitutionality of current federal gun control statutes — what else to expect? — but that the brief didn’t even concede the unconstitutionality of D.C.’s flat ban on handguns and draconian restrictions on the use of long guns for self-defense. Instead, it asked the Supreme Court to reverse and remand the D.C. Circuit’s judgment to the lower courts for more analysis and/or factfinding.

You can imagine the effect of that request on those who have waited decades for a moment when the Supreme Court finally seems poised to render a square decision applying the Second Amendment right to arms. If DOJ simply wanted to defend existing federal laws, it could have filed a brief that asked the Court to adopt a deferential standard of review (to protect existing federal statutes from attack), but also to affirm the D.C. Circuit’s judgment, on the ground that D.C.’s challenged gun laws fail any level of heightened constitutional scrutiny. Most gun rights proponents would still disagree with the call for deferential scrutiny, but the reaction would have been a lot more muted absent the call for remand.

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The Supreme Court is Open for Business

Doug Kendall argues that a lot of recent big Supreme Court cases share only an ideological, and not a legal, consistency:

It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn’t crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress’ part, ruling that federal law pushes aside state actions or remedies when it’s not at all certain that’s what Congress so intended. There’s one thing these approaches do have in common: They both favor business interests.

Is the Supreme Court using law as a means to an end? As always, comments are open for a less skeptical interpretation. The politics of Supreme Court nominations over the past few years remind me of David Kuo’s book Tempting Faith, which argued that while cultural issues may be on the surface, the biggest political initiatives in the executive branch have been economic. Perhaps the same could be said of the judicial branch.


The Department of Justice’s Override of the Alabama Supreme Court

Can officials in the Department of Justice charged with enforcing the Voting Rights Act require a state to comply with a local ordinance that the state’s highest court has held violates the state constitution? There is an interesting case rife with federalism issues scheduled for argument before the Supreme Court later this month that raises this question. The case, Riley v. Kennedy, is somewhat complicated, so at the risk of oversimplifying somewhat, I am going to give a very pared-down version of the facts. Also, in the interest of full disclosure, I participated in a moot argument for the appellant.

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Opening the Floodgates of Litigation and Civil Rights Litigation

Floodgate_clamshell.JPGFor employee benefits law geeks like myself, the decision in LaRue v. DeWolff, Boberg, and Assocs. was a watershed moment for a Supreme Court that had been reluctant to grant private rights of action to employee participants under ERISA. Although advocates for employees have celebrated the arrival of 401(k) breach of fiduciary claims, there have been many more commentaries around the internet about how LaRue will likely “open the floodgates of litigation” and overwhelm federal courts with frivolous ERISA class actions. Some examples:

Employers with defined contribution plans will likely face increased fiduciary liability exposures after the U.S. Supreme Court ruled last week that plan participants can sue to recover individual account losses as a result of a fiduciary breach, attorneys say. – Business Insurance Magazine, Feb. 25, 2008

“It will open the door to a lot more litigation. I don’t think it will be an avalanche, but plan sponsors are definitely looking at death by a thousand cuts,” said Stephen Rosenberg, an attorney with The McCormack Firm in Boston, who blogs on ERISA issues. – Lawyers USA, March 10, 2008

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Missouri v. Holland, in Missouri

I spent the end of last week at the University if Missouri-Columbia, attending a great conference organized by Peggy McGuinness, on the (in)famous case of Missouri v. Holland. There, of course, Justice Holmes wrote for the Supreme Court, holding that Congress could enact legislation otherwise beyond its constitutional authority, in furtherance of a duly-enacted treaty obligation.

With a great line-up of panelists and a fascinating set of underlying issues to explore, we had what I thought was a fantastic day-and-a-half of discussion. In particular, and perhaps appropriately, we spent a substantial amount of time assessing the continuing significance of the decision, given the dramatic expansion of Commerce Clause authority since it was handed down in 1920. There is, of course, the “loaded-gun” notion that the very availability of the expansive authority invited by the decision constitutes a substantial threat. Likewise, one might question whether the Court’s decisions in Lopez and Morrison augur a potential revival of Missouri v. Holland as constitutional doctrine.

From my perspective, though, the most fascinating element of our discussions concerned the ways in which Missouri v. Holland might be significant, regardless of its jurisprudential force. I was struck, for example, by one participant’s recollection of an occasion on which U.S. treaty negotiators’ attempts to assert constitutionally grounded federalism constraints as a basis to resist a proposal by their foreign interlocutors were parried with invocations of Missouri v. Holland.

More broadly, I was interested to think about what continuing significance the decision has, for how we conceptualize the relationship of international, national, and state law. In the scheme of jurisdictional interaction exemplified by Missouri v. Holland, international law functions as a kind of trump card – an Ace available to the federal government to coerce state authorities. If Missouri no longer captures the political economy of U.S. federal-state relations, however, as I argue in my submission to the symposium, we might do well to reconsider that traditional conception of international law as a threat to state authority, and federalism more broadly.


Maps of the State Amici in D.C. v. Heller (plus: The State Amici and the 2004 Election)

Today thirty-one states, led by Texas, filed an amicus curiae brief in support of the respondent in the historic Second Amendment case of D.C. v. Heller. I’m pleased to say that my own state’s attorney general, Oklahoma AG Drew Edmondson, a Democrat, is among the signatories.

The Thirty-One States’ brief suggests that D.C.’s full-blown bans on constitutionally protected arms should receive strict scrutiny. 31 States Br. at 31-32. Rejecting the U.S. Solicitor General’s call for a remand, the 31 States say that the D.C. Circuit’s judgment should be affirmed in full. Id. at 36. In another passage of great interest, these States also expressly support the incorporation of the Second Amendment against the States. Id. at 23 n.6 (“the right to keep and bear arms is fundamental and so is properly subject to incorporation”).

For its part, the District of Columbia attracted a group of five states as amici (three of which have no state constitutional right to arms), as well as Puerto Rico.

That leaves fourteen states that have chosen not to participate in Heller as amici on either side.

I’ll say more in another post about the 31 States’ brief, as well as the pro-Heller amicus brief filed on Friday by an absolute majority of each House of Congress and Vice President Cheney in his capacity as President of the Senate. For now, I just wanted to post these maps of the geographical distribution of the three groups of states in Heller. I hope those intrigued with American federalism and regionalism, as I am, will enjoy the food for thought.

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