Category: Supreme Court


The Posthumous Case for Impeaching Abe Fortas

Recall 1968 and the failed confirmation of Abe Fortas to be Chief Justice of the United States. President Lyndon Johnson had announced he was not seeking reelection; Republican presidential candidate Richard Nixon menaced in the wings. Chief Justice Earl Warren announced his resignation—contingent upon the Senate’s confirmation of his successor—and thereby auspiciously created one last vacancy for LBJ to fill. LBJ nominated Associate Justice Abe Fortas as the inside candidate. Homer Thornberry was nominated to fill Fortas’s to-be vacated seat.

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an open secret in official Washington.

Under oath, Fortas decided to put the allegations to rest with this testimony: “Let me say in the first place—and make this absolutely clear—that since I have been a Justice, the President of the United States has never, directly or indirectly, approximately or remotely, talked to me about anything before the Court or that might come before the Court. I want to make that absolutely clear.”

Except, that really wasn’t the truth—far from it.

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The Stevens Retirement and the Senate Midterm Loss

Over at PrawfsBlawg, Jonathan Siegel has questioned Senator Arlen Specter’s (D-PA) suggestion that Justice Stevens should wait until next year to resign. Professor Siegel (correctly, I think) has observed that the midterm election loss – where the President’s party loses seats in Congress – will likely reduce the Democratic majority in the Senate. If you doubt this, take a look at the latest Cook Report Senate race ratings. If Stevens hopes to help Obama by strategically timing his resignation, he should announce his retirement now and hope that Democrats can nominate, confirm, and appoint a successor before the midterms. Few phenomena in political science approach the status of iron-clad rules, but the midterm election loss is one you can bank on.

For Republicans, the optimal strategy is to delay or block any replacement’s nomination. I’ll hazard a guess that they face little downside risk of being viewed as obstructionist by probable Republican voters or independents who may vote for Republicans in 2010. Voter turnout will be low in November 2010 and it will be Republican. If you like Obamacare, you’ll stay home and be content. If you don’t, you’ll be heading to the poll to register your protest. Plus, if Stevens is seen as playing a political game by strategically timing  his resignation in aid of Democrats, there’s no reason that Republicans can’t play that game too. For good measure, all will cite approvingly/disapprovingly to the 1968 Fortas filibuster and the attempted 2006 Alito filibuster.

The Senate’s midterm election loss has not always been a foregone conclusion. Pre-17th Amendment, the “voters” who elected U.S. senators were state legislators. They were a committed and unusually well-informed group of voters. Their voter turnout was consistently high whether it was a presidential year election or a midterm election, and perhaps as a result there was no Senate midterm election loss. The odds of the President’s party losing or winning seats in the Senate was, by my count, about 50/50. It’s really only with direct election that we see the Senate midterm election loss appear as a regular phenomenon. By contrast, the House, which has always been directly elected, has always displayed the midterm election loss.


Error in SCOTUS Jones v. Harris Opinion

A misleading error appears in today’s unanimous Supreme Court opinion in Jones v. Harris, written by Justice Samuel Alito. The Court endorses a longstanding interpretation of a 1970 federal statute requiring mutual fund adviser fees to meet a standard of fiduciary duty. The Court carefully directs that federal courts reviewing challenged fees be cautious about second-guessing fund judgments.

On the interpretation issue, the Court accurately reviews its prior opinions to summarize what it has said of the legislative history. An alternative to the fiduciary duty standard ultimately appearing in the statute would have given the Securities and Exchange Commission power to review fees for reasonableness. Accurately citing Daily Income Fund, Inc. v. Fox, 464 U.S. 523 (1984), page 4 of today’s opinion says: “Industry representatives, however, objected to this proposal, fearing that it ‘might in essence provide the Commission with ratemaking authority.’” (emphasis added) (citing and quoting Daily Income Fund, 464 U.S., at 538).

On the direction the Court gives federal judges applying this statute, the Court cautions against excessive propensity to second-guess fee decisions. True, the statute requires testing fees by a fiduciary standard but judges should exert judicial restraint, at least when set by independent and informed fund directors. But then the Court, on page 16 of today’s opinion, inaccurately cross-references its own opinion and inaccurately cites Daily Income Fund, when writing: “As recounted above, Congress rejected a ‘reasonableness’ requirement that was criticized as charging the courts with rate-setting responsibilities.” (emphasis added) (citing Daily Income Fund, at 538–540—I’ve copied these pages below for readers to compare). Read More


SCOTUS Chides Posner/Easterbrook in Jones v. Harris

In a gentle rebuke to two famous academic judges, Richard Posner and Frank Easterbrook, today the US Supreme Court told them a debate they were airing in a recent case was not for federal judges but for Congress.

The Court, in Jones v. Harris, unanimously vacated as erroneous Easterbrook’s opinion that went out of its way to disagree with well-settled judicial interpretations of a relatively simple federal statute. Posner’s contending opinion engaged directly with the economic and market theories on which Easterbrook drew, both judges wrongly making debate out of the wisdom rather than the meaning of the statute.

The statute says an adviser to mutual funds is “deemed to be a fiduciary with respect to the receipt of compensation for services.”   For thirty years, virtually all federal courts take that to mean adviser fees cannot be so disproportionate to services rendered as to indicate lack of an arms-length sort of bargain.    Testing that requires considering all relevant factors.

The Court affirmed that interpretation and test as correct, in an opinion written by Justice Samuel Alito. Easterbrook erred when instead saying the fiduciary duty language required only that advisers disclose fees and that no other factor is relevant. The Court indicates that his dissertation on competition in the mutual fund industry and theories of market behavior is irrelevant to federal court business in the case.

Posner’s opinion, in the form of a dissent from the Circuit’s refusal to rehear the case en banc, engaged Easterbrook directly on economic theories and views of market efficacy, including debating empirical academic studies reaching opposite conclusions. The Supreme Court rebuked both, saying their job was to apply the statute not debate its wisdom. Read More


My Bad!: The Supreme Court’s Assault on Judicial Elections

As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states.  Judicial elections  — especially for state Supreme Courts  — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states.  The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution.  The Supreme Court has played a huge role in intensifying this problem – beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001.  In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court.  Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th.  Yes, judicial candidates have free speech rights.  But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal.  Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial.  O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.

But the decision by states to elect their judges was a deliberate, conscious choice.  In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes.  They sought a judiciary that would be accountable to the public.  That same populist streak has kept judicial elections alive (in at least some form) in 38 states.

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The Yale Law Journal, Vol. 119, Issue 4 & Forthcoming Supreme Court Conference

The Yale Law Journal

January 2010 | Volume 119, Issue 4

Douglas G. Baird & Robert K. Rasmussen
Fourth Amendment Seizures of Computer Data
Orin S. Kerr
American Needle v. NFL: An Opportunity
To Reshape Sports Law

Michael A. McCann
Strategic or Sincere? Analyzing Agency Use of
Guidance Documents

Connor N. Raso
Suspending the Writ at Guantánamo: Take III? 825
Constitutional Avoidance Step Zero 837


On Tuesday, March 23, 2010, The Yale Law Journal Online will join with the Yale Law School Supreme Court Advocacy Clinic to host the concluding segment of “Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process.”  The panel will bring together federal judges, members of the legal academia, and practitioners to discuss potential reforms to the Supreme Court’s certiorari process. All events will be held at Yale Law School’s Sterling Law Building in New Haven, CT. Please click here for more information.

Yale Law School | New Haven, CT | March 23, 2010

Panel I: The Judge’s Perspective: Is the Court Taking the “Right” Cases?
4:10pm‐5:30pm, Room 129

Moderator: Linda Greenhouse (Yale Law School)
The Honorable José Cabranes (2d Cir.)
Drew Days (Yale Law School)
The Honorable Brett Kavanaugh (D.C. Cir.)
The Honorable Sandra Lynch (1st Cir.)

Panel II: The Practitioners’ Perspective: What Makes An Issue “Important” to the Court?
5:40pm‐6:55pm, Room 127

Moderator: Charles Rothfeld (Mayer Brown LLP and Yale Law School)
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)


NASA v. Nelson: The Merits of the Case

As I wrote in a previous post, the U.S. Supreme Court granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008), a case where NASA required employees to answer questions about very private matters.  The U.S. Court of Appeals for the 9th Circuit granted a preliminary injunction because the questions violated the constitutional right to information privacy.

I believe the Supreme Court will reverse.  As I argued in my previous post, I hope it will not reverse based on a conclusion that the constitutional right to information privacy doesn’t exist.  Instead, the 9th Circuit’s opinion expands the constitutional right to information privacy far beyond its current contours.

I. The Constitutional Right to Information Privacy

In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.”  This latter interest has become known as the constitutional right to information privacy.

Whalen involved a challenge to a reporting requirement to the government of certain prescription drugs (many of which were considered controlled substances if not properly prescribed).  The Supreme Court concluded that because the records would be kept confidential and highly secure (the storage facility had many security safeguards), the plaintiffs’ rights weren’t violated.

The focus of the constitutional right to information privacy is a duty to avoid disclosure. The right allows disclosure if the government has a compelling interest that outweighs the privacy interest.  So the way courts address the constitutional right to information privacy is to balance the government’s interest in disclosure against the plaintiffs’ interest in privacy.

But NASA v. Nelson didn’t involve disclosure.  It involved collection. The constitutional right to information privacy isn’t focused around questioning people or gathering information — it is about protecting against unwarranted disclosure. The only other case I’m aware of where a court has used the constitutional right to information privacy to bar information gathering is another 9th Circuit case — Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1269 (9th Cir. 1998).  There, a government lab tested prospective employees blood and urine for syphilis, sickle cell anemia, and pregnancy without their knowledge and consent.  The 9th Circuit held that the testing violated the constitutional right to information privacy, concluding: “Although cases defining the privacy interest in medical information have typically involved its disclosure to ‘third’ parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests.”

But the 9th Circuit’s expansion of the constitutional right to information privacy, however normatively desirable, is not consistent with the bulk of the caselaw.

The only way I see a potential violation of the constitutional right to information privacy based on the probing questions NASA asked is if the information wasn’t protected with adequate security after being collected or if there was an indication by NASA that it would disclose the information.

The cert. questions, it is explicitly noted that the information is “protected under the Privacy Act, 5 U.S.C. 552a.”

My sense is that if the Supreme Court wants to rule narrowly in this case, it can do so as follows:

1. The constitutional right to information privacy protects against unwarranted disclosure of personal information.  It doesn’t protect against the collection of data.

2. The government is under a legal obligation pursuant to the Privacy Act to avoid disclosing the data.

3. The plaintiffs can prevail only if they show that the government fails to provide adequate security to the information.

II. The First Amendment

There is one potential theory that could protect plaintiffs — the First Amendment.   The Supreme Court’s grant of cert. focuses on the constitutional right to information privacy, so I doubt the Court will reach the First Amendment issues.  But in Shelton v. Tucker, 364 U.S. 479 (1960), the Court held that the First Amendment right to free association was violated by asking overly broad questions for state employment as teachers.

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NASA v. Nelson: Is There a Constitutional Right to Information Privacy?

The U.S. Supreme Court has just granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008).  In this case, NASA required employees to undergo background checks and answer questions about very private matters,including “any adverse information” about financial integrity, alcohol and drug abuse, and mental and emotional stability.  Plaintiffs, a group of “low risk” contract employees, sought a preliminary injunction that the investigation violated their constitutional rights.  The U.S. Court of Appeals for the 9th Circuit granted the injunction.

There is a lot at stake in this case, for it potentially involves whether or not a constitutional right exists — the little-known constitutional right to information privacy.  Despite its obscurity, this right is recognized by the vast majority of federal circuit courts and there are scores of decisions involving this right.

Here are the issues cert. was granted on:

1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

The cert. questions are narrowly posed, so there’s hope the Supreme Court will not eliminate the right.  But I see it as a possibility.  Ultimately, I believe the following:

1. The constitutional right to information privacy does (and should) exist.

2. The court’s holding in NASA v. Nelson constitutes a big expansion of the constitutional right to information privacy.  It doesn’t follow from most of the cases interpreting that right.

3. There may be a First Amendment argument to support the plaintiffs.

I will address the first contention in this post, and the other two in a subsequent post.

The constitutional right at issue is a little-known spinoff right to the constitutional right to privacy, most famously declared in Griswold v. Connecticut, 381 U.S. 478 (1965) and Roe v. Wade, 410 U.S. 113 (1973).  In these cases, the Supreme Court recognized that the Constitution protects a “right to privacy” grounded in the First, Third, Fourth, Fifth, and Ninth Amendments.  The Supreme Court issued an extensive line of cases involving the constitutional right to privacy, and these cases have generally involved freedom from government interference in making certain kinds of private decisions about one’s health, contraception, child-rearing, and abortion.

The constitutional right to information privacy emerged in a case called Whalen v. Roe, 429 U.S. 589 (1977). The case involved a government record system of people taking prescriptions for certain medications. Although the government promised that the information was confidential and secure, the plaintiffs feared the possibility of the information leaking out.

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A Whopper of an Assumption in Free Enterprise Fund v. PCAOB

In his dissent in Free Enterprise Fund v. PCAOB, D.C. Circuit Judge Brett Kavanaugh characterized the SEC – Public Company Accounting Oversight Board (PCAOB) relationship as “Humphrey’s Executor squared.” His analysis assumes that two firewalls shield the PCAOB’s exercise of executive power from presidential control. First, PCAOB members can be removed only for cause by SEC commissioners. That’s clear enough. Second, SEC commissioners can be removed only for cause by the President.

The strange thing is that no statute says that the President may remove SEC commissioners only for cause. The idea that the President may not remove SEC commissioners except for cause turns out to be only a whopper of an assumption. Removing that erroneous assumption, there is only the PCAOB-SEC firewall to presidential control of the PCAOB and so understood that arrangement looks no worse than Humphrey’s Executor to the first power. Unless the Court is prepared to abandon Humphrey’s Executor altogether, this part of the challenge looks like a loser at this point in time.

The significance of the assumption was not lost on the Court during oral argument.

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The Yale Law Journal Online: The Justice as Commissioner: Benching the Judge-Umpire Analogy


The approach of viewing federal judges in the United States as baseball umpires has gained traction with the recent nomination processes of the Supreme Court, and sparked debate in both legal academia and across the political spectrum. The Yale Law Journal Online is therefore pleased to announce the publication of The Justice as Commissioner: Benching the Judge-Umpire Analogy by Aaron Zelinsky (Yale Law School). Mr. Zelinsky offers a timely assessment and critique of this analogy, as well as alternatives to envisioning the role of the Supreme Court.

Preferred citation: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010),