Category: Supreme Court


Justice Sotomayor, Civil Procedure, and the “Tradition” of Unanimous Debut Opinions

Yesterday brought the Supreme Court’s first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:

“The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.”

The issue of when interlocutory district court orders can be immediately appealed is one that’s particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).

Justice Thomas’s concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court’s result, Justice Thomas writes that Justice Sotomayor’s opinion “needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit.” He concludes:

“I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit — effectively, predictably, and in a way we should have done long ago — the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.”

Some have argued that Justice Thomas’s opinion contravenes the Supreme Court’s “tradition” that a new Justice’s first opinion be a unanimous one. (See Eric Muller’s post at The Faculty Lounge: Clarence Thomas “Welcomes” Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as “testy” and “a swipe at his new colleague.” On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor’s opinion (“I concur in the judgment and in Part II-C of the Court’s opinion”). What do folks think?

At the end of the day, maybe it doesn’t really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court’s most junior Justice. Could there be a “Curse of the Nonunanimous Debut Opinion”?

(Cross-posted at the Civil Procedure & Federal Courts Blog)


Democratic Deficit or an Oligarchy?

“It has been said that democracy is the worst form of government

except all the others that have been tried.”

Winston Churchill

I suppose the retort is that, if we have a democracy, these other forms must be really, really terrible. The U.S. seems mired, incapable of even starting to come to grips with our problems. After a 50 year struggle to get a rational health care system, we are closer but still not there. And, we may yet not get there. Waiting in the wings are issues such as reforms in financial regulation, climate change, and important civil rights issues. At the glacial pace of health care reform, these issues may not be reached, much less decided, before the next election cycle starts in full swing.

Some will say that we are doing just fine because inaction is the point of our governmental system. As Thomas Paine put it, “That government is best which governs least.” Whether or not that might still be true in some philosophical sense, the reason for our governmental inaction is not policy but is the result of a tremendous and growing democratic deficit in the way our government is structured and operates. And, of course, our government is not really that small, it is just ineffective.

A number people, particularly Sandy Levinson, have called out our democratic failings. Commonly reported causes of that deficit include federalism, a national government of limited powers, a President not elected by the people, separation of powers between the Congress and the President that diffuses responsibility, the disproportionate power of seniority in both Houses of Congress, each State getting two seats in the Senate no matter how miniscule or large its population and the filibuster rule of the Senate requiring supermajorities to get anything done.

The point I want to add to the discussion is the role of our system of political parties, the lack of much party discipline, and the role of campaign contributions.  We tend to talk about the Republican Party and the Democratic Party as if they were monolithic institutions that play significant roles in governance. That assumes some discipline within each party that is lacking. Each elected national official – President, Senators and Representatives – has his or her own, individualized political party as do their opponents trying to replace them. Yes, individuals who call themselves Democrats or Republicans sometimes work together under the umbrella of one party name or the other. Yes, the so-called national parties have some money to contribute to the campaign war chests of some candidates. Presidential elections come as close as we get to national parties because in each election there is a national Democratic Presidential Election Party and a Republican one as well.  But, these parties are really creatures of the candidates, not the other way around. Read More


The Yale Law Journal Online: Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process


On September 19, 2009, Frederick Schauer discussed the state of the Supreme Court’s certiorari process at a conference sponsored by The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic.  Professor Schauer’s Essay on the topic, evaluating the dwindling caseload of the Court, the potential for an informational disadvantage on the part of the Justices themselves, and means by which a solution may be found, is now available on YLJ Online.


Comparative Constitutional Law, “Exceptionalism,” and “Originalism”

Last summer I was fortunate to share with Anne Massie the chance to teach Comparative Constitutional Law in the Loyola Chicago program at its Rome campus. Part of what made it enjoyable was the participation of Justice Ruth Ginsburg, along with her law professor husband, Marty Ginsburg. Justice Ginsburg gave three lectures – one on the inner workings of the Court, a second on her experiences litigating women’s rights cases in the 1970s, and the third on dissents. Her lectures revealed to enthralled students how passionate she is about what she is doing and how personal the relationship is among most of the Justices. Marty gave a wonderful lecture entitled “Imperfections.” It was about how things that happen that might seem not so desirable at the time can, nevertheless, lead to even better outcomes. He started with wondering what would have happened if big law firms would have hired women lawyers when Sandra Day O’Connor and Ruth Bader Ginsburg graduated from law school. That would have been good, but, had that been the case, both of them would now be rich, retired partners of major law firms. As things turned out, much better things happened because one path had been closed. His warmth and humor made the ambiance so relaxed that a student was so bold to ask how he and Justice Ginsburg had met, which they took turns answering.

What I want to comment on, however, is an insight that teaching comparative constitutional law allowed me to have and has been useful in my thinking about American constitutional law. It ties together our supposed “exceptionalism,” our doctrine of judicial review, and “originalism.”

I have always been proud that the US Constitution has been the inspiration for the development of written constitutions and of constitutional democracy, including individual constitutional rights, in many countries around the world. Judicial review, as originally articulated in Marbury v. Madison, has taken hold around the world in part because of our experience with it, particularly in its role in developing individual constitutional rights to expand the concept of what a democracy entails.

In recent times, however, our Constitution and the decisions of our Supreme Court are not cited that often by the courts making constitutional decisions in these other countries. Given the strident rejection of any citation to foreign legal developments by some in the US, including some member of our Supreme Court, one explanation is simply that turnabout is fair play: If the constitutional law of other countries is to be avoided at all costs in US courts because of our supposed “exceptionalism,” why should the courts in other countries cite US decisions?

There may be some of that.  However, I think more is at stake. The demand for isolationist “exceptionalism” may have something to do with our turn toward “originalist” interpretative approaches that has come to so dominate the discourse about constitutional law in this country.  “Originalism” creep is even expanding across the ideological spectrum of US constitutionalists. “Originalism” in any of its many versions is simply a non-starter for the courts of most other countries deciding constitutional questions.

The absence of “originalist” talk outside the US may be because most of the countries that now have constitutional judicial review have written it into their constitutions. Some have even created specialized constitutional courts with jurisdiction limited to decisions of constitutional questions. Our written constitution lacks such an explicit provision, though the structure of our constitution, with the horizontal separation of powers into three branches for the national government and a vertical power distribution between the national and supposedly sovereign states, seems to me to ache for judicial review to resolve the inevitable disputes that emerge in such a complicated power sharing system. In countries with express judicial review provisions, there is no question of the legitimacy of judicial review, though, of course, there are intense disputes over any particular exercise of that power.

So what is the link between “originalism” and an explicit judicial review power? Given security over the legitimacy of judicial review in those countries where it is explicitly established in the written constitution, it struck me that one way of looking at our obsession with “originialism” is that it reflects our collective insecurity about the legitimacy of judicial review. The strident cry of US “exceptionalism,” as virtuous and not to be contaminated by the introduction of foreign influences, is a way of shielding our constitutional discourse about judicial review from any recognition of its calm acceptance in so many other countries. What is exceptional is not judicial review but our insecurity over its legitimacy.

Some years back, Cass Sunstein proffered a straightforward political explanation for US judicial “exceptionalism:” The national political turn away from Warren Court activism with the coming of Nixonian Republicanism. One of its goals was to stop the momentum the Warren Court had been developing for the expansion of individual constitutional rights from negative ones to include positive rights. Shutting out the experiences of other countries that had been developing broader individual constitutional rights helped stem the tide toward recognition of positive rights here.

If that is true, that raises a question of which way causation runs: Has our collective insecurity about the validity of judicial review caused the cry for US “exceptionalism” and our soul-searching “originialism”? Or, has that insecurity been used instrumentally with politically motivated calls of “exceptionalism” and “originalism” made to retard the development of individual constitutional rights?

I wish I knew the answer to that. At any rate, teaching comparative constitutional law sure put the debates over how to interpret our Constitution into a new context. I hope I will be able to expand the discussion in my US constitutional law course this coming semester.


In Support of Activist Officiating

Dave’s post earlier today on referees and judging (linking to a fascinating discussion of “whistleblower” bad-boy Tim Donaghy’s new book, Blowing the Whistle) has got me thinking.

While on a certain level, I’m outraged at the thought that refs do not follow the rules of the game with objectivity and dispassion, I’m not sure that I want officials to just call “balls” and “strikes.”

The reason that I never bought into the Chief Justice’s analogy of judging to umpiring is that sports, for me, are not just about fairness and a level playing field. They’re about fun and entertainment. I want to watch a good game and I don’t care if there is a little “tweak” here or there to ensure an enjoyable match for the spectators.

Although it is dangerous to admit in my new home of Philadelphia, I am a party to an abusive lifelong relationship with the Washington Redskins and Wizards (née Bullets). Hoping to break the cycle of repeated psychological mistreatment, a number of years back I started also following English Premier League soccer (I’m a Liverpool supporter, although I tend to watch whatever pops up on Fox Soccer Channel).

In EPL and other European soccer matches, one of the things that always irks me is when a ref sends off a player on the weaker team in the opening minutes. It really doesn’t matter to me that the official was following the letter of the law in giving the red card. When I sit down, my goal is 90 minutes of pleasure. Dismissing a key player in the fourth minute spoils the proceedings. (Of course, I’m advocating “tweaking” here – I’m not asking a ref to turn a blind eye to a deliberate two-footed, studs-up challenge aimed at an opponent’s head).

Yes, I might feel differently if I was a gambling man or if the Redskins returned to their glory days, but maybe not. I’ll always choose an exciting overtime game to a blow out, even if I’m on the right side of the rout.


14 Penn Plaza v. Pyett and the Fairness in Arbitration Act

Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!

I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.”  Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.

 Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.

 Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.

Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.

The students raised some interesting points that did not necessarily agree with my position. Read More


Ricci: The Equal Protection Implications


The question presented for decision in Ricci had two elements, a Title VII aspect and an Equal Protection one:

“When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?” 

By deciding the Title VII question, that the City had engaged in disparate treatment discrimination that violated Title VII, the Court said it had avoided deciding the equal protection question: “In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.”

The Court went further to emphasize that it was leaving the constitutional claim for another day and that its decision in Ricci on Title VII grounds was not in fact deciding any equal protection claim:

“Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”

Based on what the Court said about the constitution in Ricci, this would be the end of the post. But equal protection doctrine is a powerful background issue in Ricci. See, Richard Primus, in The Future of Disparate Impact,, for a further development of this argument. Read More


“Practical Consequences” in Hertz Corp. v. Melinda Friend

Two weeks ago, the Supreme Court heard oral arguments in a case called The Hertz Corporation v. Melinda Friend, et al. At issue in the case is the appropriate test for determining which State constitutes a corporation’s “principal place of business” for diversity jurisdiction purposes. In September 2007, Melinda Friend et al. filed a class action lawsuit against Hertz Corporation in California state court; shortly thereafter Hertz sought to remove the lawsuit to federal court, arguing that it is incorporated in Delaware and that its principal place of business is New Jersey, where its corporate headquarters are located. Friend countered that California should be considered Hertz’s principal place of business because Hertz conducts more business in California than in any other state.

The California district court and the Ninth Circuit agreed with Friend, applying the so-called “total activity” or “substantial predominance” test, which holds that if a corporation’s “business activity [in one State] ‘is significantly larger than any other state in which the corporation conducts business,’” that State “‘is the corporation’s principal place of business.’” The Ninth Circuit’s approach is consistent with the “total activity” test adopted by the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits; only one Circuit, the Seventh, has adopted the headquarters test advocated by Hertz. Based on the November 10 oral argument transcripts, the Supreme Court appears poised to reverse the Ninth Circuit (and the prevailing approach in the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits) and to adopt a rebuttable presumption that a corporation’s “principal place of business” is the State in which its corporate headquarters are located.

The briefs and oral argument in the case provide a tour de force of statutory interpretation arguments, from references to (1) the ordinary meaning of “place” to (2) dictionary definitions to (3) the meaning given to “principal place of business” in the Bankruptcy Code and other statutes to (4) statutory purpose to (5) legislative history, including the rejected proposal rule, to (6) arguments about Congress’s intent. But what I find most striking in reading the oral argument transcript (and Hertz’s brief) is the emphasis placed on the simplicity and ease of administration of the “headquarters” test, as opposed to other tests for “principal place of business.” Read More


Ricci: The Interaction of Disparate Treatment and Impact Discrimination

Until Ricci, the interrelation between intentional disparate treatment discrimination and unintentional disparate impact discrimination had not been worked out very thoroughly by the courts. Nevertheless, as Justice Ginsburg put it in her dissent, no conflict existed between the two theories:

 “Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending work place discrimination and promoting genuinely equal opportunity.” 

In the pre-Ricci period, employers were tasked with not making employment decisions with an intent to discriminate. Acting based on knowing the race of the individuals affected by the decision, however, was not sufficient proof that the employer acted with an intent to discriminate. At the same time, the employer was also tasked with avoiding using employment practices that had a disproportionate impact on members of minority groups unless that practice was job related and consistent with business necessity. Knowing the racial consequences of the use of an employment practice was the first, and necessary, step toward avoiding disparate impact liability. But an employer, acting with that knowledge did not trigger disparate treatment liability without more. So, as long as the employer did not act with an intent to discriminate against anyone on the basis of race, it avoided disparate treatment liability and, if it acted on the known racial consequences of its employer practices to avoid disparate impact liability, that was not disparate treatment discrimination.

What created the conflict between the two concepts that emerged in Ricci is the new notion that acting with knowledge of the racial consequences of the decision is acting with  an intent to discriminate, at least in certain circumstances. In Justice Kennedy’s view, the employer does not act with an intent to discriminate, if, before a practice is used, the employer undertakes to review its likely racial consequences in order to shield itself from disparate impact liability. If, however, the employer has used the practice and its use has created reliance interests in others, it is too late to abandon the outcomes of that practice because that is disparate treatment discrimination unless the employer has a “strong basis in the evidence” of its disparate impact liability if it went ahead and use the practice.   Read More


Ricci: Color-Blind Standards in a Race Conscious Society?

While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.

The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:

“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”

The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:

“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed.  (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read More