Category: Supreme Court


The Second Amendment Term?

billofrights.jpgDistrict of Columbia Mayor Adrian Fenty announced today that the District will petition the U.S. Supreme Court for certiorari in the landmark Second Amendment case of Parker v. D.C. The District has asked for a 30-day extension of the August 6 deadline for filing its petition.

There has been extensive and lively discussion of Parker, yet I think the legal commentariat has not quite grasped how momentous a cert grant would be. It’s not often that the Supreme Court takes up the core meaning of an entire Amendment of the Bill of Rights, in a context where it writes on a mostly clean slate from the standpoint of prior holdings. If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.

How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal.

Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker:

Among the guarantees of the Constitution’s Bill of Rights are the First Amendment’s Establishment Clause and the Second Amendment. The cultural left has traditionally favored a vigorous application of the Establishment Clause. The cultural right has favored a vigorous application of the Second Amendment.

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When the Roberts Court Turns Into the Kennedy Court: End-of-Term Thoughts

janus_small.jpgBy my watch it’s fifty-five hours since the final decisions of the Supreme Court’s October 2006 Term, and it already feels late to be weighing in. Some clichés are important enough to repeat: the pace of analysis, spin, and critical consensus is radically different from what was possible even ten years ago. As one of my former philosophy profs (a Heidegger fan) observed, the Internet is an ontological change.

What kind of Court do we have? Start with Andrew Siegel’s excellent “Meet the Roberts Court” at PrawfsBlawg (written before the school cases came down). Then modify it with Lyle Denniston’s “The Impact of Fervent Dissent,” (written after the school cases). The result, I think, is the best current working model of the Supreme Court.

In the general run of cases, it is the Roberts Court. As Prof. Siegel suggests, the addition of Justice Alito to form a five-Justice working majority has put the “Reagan Justice Department … firmly in control,” limiting and distinguishing Warren and Burger-era precedents. Justice Kennedy is still the swing vote in these cases, but he seems to treat them as “normal science” (to use a Kuhnian distinction that I find oddly helpful re: Kennedy). He will ordinarily agree with the Chief Justice and Justice Alito, or stake out a position in conventional legal terms that comes close to theirs. This is very significant, because the cases in this category are not merely “small” cases — they encompass some of the most important things the Supreme Court does. Enforcing habeas deadlines, refusing to extend the Establishment Clause standing exception, adopting relatively pro-business interpretations of statutes such as Title VII. It adds up. But these cases fall below the threshold of drawing widespread attention from the non-lawyer media and the public. They are not lead stories on CNN.

In the really big cases — the CNN cases — it’s the Kennedy Court.

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Game Over for Campaign Finance Reform?

moneyshirt.jpgCommenting on today’s decision on campaign financing (WRTL v. FEC), Richard Pildes highlights how a seemingly technical insistence on the protection of “issue ads” may undo the whole edifice of regulation:

[T]he analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other “redeeming social value,” the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes.

Expect more Swift Boatings and character assassinations, bedizened by fleeting mentions of “the issues.”

Commentators in the “thick of it,” far more knowledgeable on the topic than me, have declared WRTL a “sea change,” effectively repudiating the landmark McConnell decision that was only reached four years ago. But I have a sense the seeds for WRTL were sown about 30 years ago in Buckley, the leading case on campaign finance. Consider this ringing declaration from the 1976 Buckley opinion:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

As soon as that point is capitulated, campaign finance reform becomes (to borrow a Borkian turn of phrase) a policy at war with itself. We already have anti-bribery laws to prevent quid pro quo exchanges of dollars for favors. Campaign finance regulation’s raison d’etre is to prevent the conversion of economic into political power. Buckley declared that rationale unconstitutional, and no advocacy is brilliant enough to evade those confines. Trying to argue for effective campaign finance regulation within the confines of Buckley is like trying to compose an epic in a villanelle: the form itself defeats the meaning one would give it.

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Rosen’s Crabbed View of Judicial Temperament

RosenBook.jpgI recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”

Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.

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Where Repeat Where Are the SCOTUS School Cases ** The World Wonders


Another SCOTUS opinion day without decisions in PICS v. Seattle Sch. Dist. and Meredith v. Jefferson County, the big Fourteenth Amendment challenges to officials’ use of race in assigning students to the Seattle and Louisville public schools. Informed speculation identifies Chief Justice Roberts as the likely author of the majority opinion — or at least as having assigned himself the draft majority opinion at conference. It’s been six and a half months now since argument.

Different possible reasons for the wait: (1) someone flipped after the draft was circulated, requiring the 5-4 draft majority to be rewritten as a dissent, and vice-versa; (2) the Court has splintered, yielding a mere plurality opinion plus a crowd of separate writings; (3) one or more Justices is working up an unusually thorough, blockbuster dissent to read from the bench; and/or (4) (the least likely) the Chief Justice is taking extra time to work up an unusually thorough, blockbuster majority opinion that not only strikes down the school programs but reaches out to abrogate the 5-4 opinion in Grutter v. Bollinger, the SCOTUS precedent closest to the issues in PICS and Meredith.

Or maybe they’ve just been busy clearing out less high-profile cases, like today’s three.

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How Cautionary is Erickson v. Pardus? (with an excursus on Commerce Clause disillusionment)

Cautionsign.jpgFor civil procedure mavens, the clear Big SCOTUS Case of the Term is Bell Atlantic Corp. v. Twombly (May 21, 2007), which dismissed antitrust conspiracy claims brought by a humongous class of consumers against the regional telecoms. The seven-Justice majority in Twombly held that the plaintiffs’ complaint failed to state a claim for relief. The Court banished into outer darkness (or as Justice Souter put it, “retired“) the famous liberal-pleading mantra from Conley v. Gibson (1957) that a motion to dismiss should be denied unless plaintiff can prove “no set of facts” consistent with her allegations that would support relief. Further, the Court applied what seemed a fairly demanding “plausibility” requirement to the plaintiffs’ allegations — viz., it’s not enough that the defendants’ alleged parallel conduct could have reflected an illegal agreement to restrain trade; instead, the allegations had to “nudge th[e] claims across the line from conceivable to plausible.” Finally, the majority served up a thick slice of policy reasoning: due to the massive costs of discovery to defendants in major civil antitrust suits (in a cynical moment I described this to a friend as the “Sullivan & Cromwell client pleading standard”), weak complaints must be weeded out prior to discovery using something stricter than the Conley “no set of facts” standard.

There’s also an effective dissent by Justice Stevens, who recognizes that this is all going straight into forty thousand Civ Pro casebooks. (Indeed, I doubt Twombly can be cut down much for classroom use. Some string cites and footnotes look shaveable, but students are basically going to need the whole thing.)

Heady stuff. Twombly clearly does two big things: (1) It scraps the Conley “no set of facts” language. This part of Twombly is straight construction of Fed. R. Civ. P. 8(a)(2) and I have no doubt it applies across the board. Plaintiffs opposing a 12(b)(6) motion to dismiss just can’t quote that part of Justice Black’s Conley opinion any more. (2) It applies a standard of meaningful “plausiblity” scrutiny to allegations in Sherman Act section 1 (antitrust conspiracy) cases.

After that, it gets fuzzy. Does the tough “plausibility” pleading requirement also extend to all civil complaints? Or was it just about antitrust claims, where defendants are often huge entities engaged in complex activity, and the line separating lawful from actionable conduct can be quite abstract (e.g., “tacit agreement” vs. mere “conscious parallelism”)? Or was the line between “big” and “small” civil cases? For what it’s worth, I think the Twombly opinion is neutral to hostile on the validity of extending tough plausibility scrutiny much outside the antitrust or “big civil case” context. Reading the opinion with the eyes of a former defense litigator, it seemed to be deliberately hard to extract a “plausiibility” soundbite that isn’t closely linked to a claim-specific mention of “the antitrust context,” “Sherman act claims,” “antitrust complaints,” consistently citing to antitrust precedents (rather than other types of cases) for points about pleading, etc.

Several federal district court judges disagree with me. They have already rendered pleading opinions applying the Twombly “plausible claim” language to claims quite different from Twombly. See, e.g., Hicks v. Ass’n of Am. Med. Coll., 2007 WL 1577841 (D.D.C. May 31, 2007) (wrongful discharge); Horton v. Williams, 2007 WL 1575974 (M.D. Ala. May 30, 2007) (constitutional civil rights case).

But the Twombly opinion is no longer the whole story.

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Why Watters Matters: An Early Lesson from the First Circuit

Even in a quieter Term, the Supreme Court’s 5-3 decision in Watters v. Wachovia Bank, N.A. would hardly go down as one of the more significant, noteworthy, or even interesting rulings handed down, and that will certainly prove to be the case as the present Term races toward its (increasingly controversial) end. That’s not to say, though, that Watters won’t turn out to have a substantial impact on federal and state commercial regulation in a large class of cases, and we have a First Circuit decision from yesterday as proof of that. [Hat tip to How Appealing.]

First, Watters. I’ve blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the Comptroller of the Currency is entitled to preempt state consumer regulation of “national banking activities” even when those activities are conducted by entities other than “national” banks. In Watters itself, the issue was whether the OCC could preempt state regulation of national banks’ operating subsidiaries, and the Court affirmed decisions of the Second, Fourth, Sixth, and Ninth Circuits, all answering that question in the affirmative (although, as I noted at the time, the Court adopted the Ninth Circuit’s Chevron-free analysis, rather than the Chevron-laden views of the other three circuits).

The problem is that by focusing on the activity rather than the actor, the Court endorsed a broad understanding of the OCC’s preemptive authority, and one that could possibly extend to oust state regulation of all kinds of commercial actors, none of whom are actually “national banks,” and none of whom are therefore expressly protected by federal statute. Justice Stevens, in his eloquent dissent, raised the specter of such a possibility, and the First Circuit, yesterday, proved Justice Stevens prophetic. More about the decision below the fold…

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Symposium on Televising the Supreme Court


The Michigan Law Review’s companion journal First Impressions today published an online symposium discussing the televising of Supreme Court proceedings. The symposium takes place against a backdrop provided by legislation pending in the House and Senate that would require the Supreme Court to televise its proceedings.

A diverse group of authors explores the implications of the prospective legislation and considers potential risks and benefits of televising the Court’s proceedings. The extended post contains a more complete description of the symposium as well as the full text of the essays.

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The Future of the Supreme Court

supremecourt11a.jpgOver at SCOTUS Blog, Tom Goldstein wonders what would happen to the Supreme Court if a Republican were to win the presidency in 2008:

As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted. . . .

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.

Orin Kerr replies:

I look at things differently, and a thought experiment explains why. Imagine the year is 1969, the end of a decade of 5-4 constitutional blockbusters, and Chief Justice Warren has recently announced his retirement. A time-traveler from 2007 comes back and tells you the dramatic news about who would nominate the Justices of the next four decades. He explains to you that American politics would shift sharply to the right in the future, and that that in the next four decades 12 of the 14 new Justices — over 85% — would be nominated by Republicans.

Orin is right that predicting the future of the Supreme Court based on elections is fraught with peril. Yet there is a fundamental difference between today and 1969 that makes Orin’s hypothetical not very apt. Today, the appointments process is much different — is is far more partisan. Partly because Republican presidents appointed justices who turned out to be liberal, there has been a backlash that has resulted in far more vetting of candidates. Is it possible for more Souters or Blackmuns to slip through a Republican administration? Certainly, anything is possible. But I doubt that it is likely. The lessons of the past will weigh heavily on every president, whether Republican or Democrat. With the Court hanging in the balance, I bet most presidential administrations will carefully vet their nominees.

The days where Supreme Court nominees turn out to be ideological surprises are largely gone. This is due, in part, to the widespread acceptance of the legal realist notion that justices are not neutral interpreters of the law; to the increasing involvement throughout the twentieth century of the Court in the political and social issues of the day; to the increasingly bitter confirmation battles that now have become a hollow ritual of empty rhetoric; and to the lessons of history that nominees not thoroughly vetted can turn into longstanding sources of regret. I wish we could go back to the more innocent age of 1969, but I doubt that we can recover such lost innocence.

The only transformation I see capable of changing the appointments process is a major realignment in political thought. For example, during the New Deal, it was the liberals who were calling for judicial restraint. It took a while before attitudes realigned, with conservative justices (such as Felix Frankfurter) continuing to advocate for judicial restraint while the liberal justices pressed for Warren Court expansion of rights. We’re still living in this paradigm, and until it shifts, we won’t be seeing any more surprise justices.

Therefore, I agree with Tom Goldstein that the next election is pivotal for the Supreme Court.


The Death of Fact-finding and the Birth of Truth

magnififying.jpgToday’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).

Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.'” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

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