Category: Supreme Court


The Supreme Court and Law Review Articles

Last term, when the Supreme Court decided Philip Morris USA v. Williams, a case involving constitutional limits on the award of punitvie damages, I was surprised to find that the Court did not once cite an article by my colleague Tom Colby. In the case, a majority of the Court essentially adopted wholesale the argument that Professor Colby had advanced in a 2003 Minnesota Law Review article. (There is little doubt that Justice Breyer, who wrote the majority opinion, was aware of the article, because the parties’ briefs cited it repeatedly.) I then learned that Linda Greenhouse had previously reported that Chief Justice Roberts seems inclined against citing law review articles in opinions. (Greenhouse had described it as Roberts’s “seeming allergy to citing law review articles.”) I began to wonder whether this is a trend, and whether we can expect the Court to cite fewer and fewer law review articles in its opinions.

After an admittedly quick search, here is what I learned. From the October 2000 Term through the October 2004 term, the Court averaged 24.8 cases per term in which at least one opinion cited at least one law review article. In the October 2005 Term — Chief Justice Roberts’s first term — the Court decided 28 cases in which at least one opinion cited at least one law review article. (As Greenhouse reported, during that term, Roberts himself cited only one article, by Judge Friendly, for whom he had clerked.) But in the most recent term — the October 2006 term, during which the Court decided the Williams case — the Court decided only 16 cases in which at least one opinion cited at least one law review article. Here are the year-by-year numbers:

October Term 2000: 26

October Term 2001: 20

October Term 2002: 21

October Term 2003: 28

October Term 2004: 29

October Term 2005: 28

October Term 2006: 16

It is too soon to tell whether the decline in the most recent term signals the start of a trend or is just an aberration, although the reports about Roberts’s view of the relevance of law review articles suggests at least that this is a trend worth following. But let’s assume for a moment that it is part of a trend. Is there anything wrong with the Court’s ostensibly relying on arguments developed by academics without citing the sources of those arguments? (I am assuming for present purposes that the Justices (or at least the clerks) will be aware of the body of legal scholarship relevant to the questions before the Court.)

On the one hand, the Justices regularly adopt without citation arguments advanced by the parties in their briefs, and although there might be occasional grumbling from advocates who thought they deserved some acknowledgment, I have never heard anyone suggest that there is something problematic or dishonest about this approach. On the other hand, my sense is that, at least as a matter of tradition, the Court has generally cited authorities external to the litigation itself when its arguments are drawn directly from them. In addition, most law schools today stress to students the importance of attribution, in both legal advocacy and scholarship. Of course, failure to cite law review articles is not the same as academic dishonesty. But given the general preference for attribution, perhaps the Court’s failure to treat articles as persuasive authority — if in fact that is what it is doing — deserves some explanation. I am curious to hear what others think.

Captured Product Safety Commission

nord.jpgAbout a year ago I heard a radio story about a new technology called SawStop, which is designed to prevent table saw injuries. Every year table saws cause “over 60,000 injuries, over 3,000 amputations, and $2 billion in injury-related costs.” SawStop petitioned the Consumer Products Safety Commission to issue new rules to encourage manufacturers to increase the safety of their saws. After years of lobbying, SawStop appeared to get the CPSC to agree…but then its chairman resigned:

[T]he CPSC staff recommended the petition be granted. On July 11, the commission voted, 2 to 1, to start the process of making a new rule, a job that can take years. [Sawstop’s founder and attorney] said they felt vindicated, although the rejoicing ended four days later when Stratton resigned from the agency. One of the remaining commissioners, Nancy A. Nord[pictured at right], wanted to defer action on the petition and instead look at voluntary efforts being made by the industry. . . . Julie Vallese , CPSC spokeswoman, said the saw-safety standard idea isn’t dead but that the agency’s “decision-making procedures” don’t allow the rulemaking to advance with what amounts to a deadlocked commission.

I was surprised by that story, but apparently gridlock and apathy are par for the course at the agency. For example, it has protected ATV manufacturers from regulation, despite the fact that in 2004 “44,000 children riding all terrain vehicles were injured . . . nearly 150 of them fatally.” Here’s one insider’s account of that decision:

[At a hearing on the matter,] John Gibson Mullan, the agency’s director of compliance and a former lawyer for the A.T.V. industry . . . [said that the] current system of warning labels and other voluntary safety standards was working, he said. “We would need to be very careful about making any changes.” Robin L. Ingle, then the agency’s hazard statistician and A.T.V. injury expert, was dumbfounded. Her months of research did not support Mr. Mullan’s analysis. Yet she would not get to offer a rebuttal. “He had hijacked the presentation,” [she said].

A bit more commentary below the fold. . . .

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Some Thoughts on the Supreme Court’s Reversal Rate

supremecourt6.jpgEvery term, commentators attempt to predict the outcomes of the cases in the Supreme Court docket. The statistics, however, suggest that the betting person’s answer should be reversal. According to a recent article in Slate, and based on SCOTUSBlog data (2004 term, 2005 term, 2006 term):

Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively.

It is interesting how remarkably constant the reversal percentage is — 75%. It suggests that the Supreme Court primarily takes cases it wants to reverse, with only a few exceptions. Assuming the Court takes about 70 cases a term, it will only affirm in about 17 of them. So perhaps the new game for commentators should be listing those 17 lucky cases that will get affirmed.

Much ado has been made of the 9th Circuit’s dubious honor of having the most cases reversed or vacated — 19 out of 22 this term. But the 9th Circuit decides an incredibly large number of cases, and it typically has the most cases of any circuit before the Court. So it is likely to be victorious every year in terms of numbers of cases reversed. One must look at its reversal percentage to get a better picture, and it typically exceeds the average of about 75% by being between 80 and 90%. However, as the Slate article points out, in 2004 and 2005, “the 9th was reversed 84 percent and 88.9 percent of the time, or about a case or two more each year than it would have been if it had conformed to the reversal rate of the other circuits.” In other words, the 9th Circuit’s bad reversal reputation is largely earned because it’s big.

I wonder whether the Supreme Court’s reversal rate of 75% is a recent phenomenon or existed throughout its history. Does anybody know of where to find stats on reversal rates beyond recent times?

Another interesting statistic, but surely not one easily compiled, would be to examine the percentage of cases contrary to Supreme Court precedent that lead to a grant of cert. Judging from the 9th Circuit statistics, it decides about 6000 cases per year, and the Court takes about 20. That’s 0.3%. If that rate holds true generally — that the Court is taking just a fraction of one percent of cases, it can mean one of two things: (1) the Court is ignoring many cases in which lower courts depart rather overtly from Supreme Court precedent; or (2) lower courts are doing a remarkable job of staying in line with the Court.

It is doubtful that a statistic exists for cases that depart overtly from Supreme Court precedent and their likelihood to result in a grant of cert, and such a tally would necessarily involve some subjectivity, but it would be interesting to find out. Assuming that the Court takes about 70 cases per year, and reverses in 75% of them, that’s only about 53 cases. Many of those cases are reversed not because lower courts clearly contravened Supreme Court precedent, but for other reasons such as circuit splits or issues of first impression. Only a handful, then, are reversed for involving significant departures from Supreme Court precedent. Can it be that there are only a handful of such cases? Or is the Court just ignoring the others?


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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