Category: Supreme Court

2

There Are Many Fish in the Sea

For those of you who enjoy statutory interpretation, the Supreme Court’s long-awaited “discarded fish” opinion came out this morning.  Justice Kagan’s dissent probably marks the first Supreme Court reference to Mad Libs.

1

Certiorari Denials

Over on Balkinization, I wrote a post suggesting that the Justices adopt a practice of publicly noting the votes on each certiorari petition.  Since then, I’ve done some research that adds some context to that issue.

It appears that no Justice publicly dissented from a certiorari decision until 1950.  Justice Frankfurter was the first to do so, and he argued that noting dissents from every denial would be unwise because that would not convey any useful information.  In any given case, there could be many reasons for refusing to grant certiorari, thus doing so without an explanation would not tell you much, if anything.  In 1976, Justice Stevens argued (in what was in effect a concurrence to a cert denial), that noting cert dissents was a bad idea because it would breach the confidentiality of those discussions and thus hurt their quality.

I’m not persuaded by either of these explanations.  Sure a vote for or against certiorari (without more) is ambiguous, but does it really tell us nothing helpful?  And would the Justices really discuss the petitions differently if the votes were disclosed?  Now they might vote differently, but I’m not sure that the way they vote now is better in any meaningful way.

Now it is true that disclosure of this information may not be as high a priority as, say, getting oral arguments televised.  Fair enough.  But I still think (in a tentative way) that disclosure of certiorari votes would be a better practice.

7

Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky

We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society. Erwin Chemerinsky (2014)

I am very pleased to interview Dean Erwin Chemerinsky in connection with his eighth book, The Case Against the Supreme Court (Viking, 2014) – this in addition to the 200-plus scholarly articles he has published. One of those articles was the foreword to the Harvard Law Review’s 1988 Supreme Court Term issue. His first scholarly article was published 36 years ago, this when he was associated with the D.C. firm of Dobrovir, Oakes, & Gebhardt. Today, Chemerinsky’s casebook, Constitutional Law, is one of the most widely read law textbooks in the country.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Unlike most academics, he also has a practitioner’s flare for the law, having argued five cases in the Supreme Court, among other courts. Last year, National Jurist magazine named Dean Chemerinsky as the most influential persons in legal education while the Anti Defamation League honored him for his commitment and contributions to freedom and education. And in 2007, Douglas Kmiec labeled him as “one of the finest constitutional scholars in the country.”

True to his reputation, Dean Chemerinsky’s new book invites us to think – and think hard – about some of our gospel “givens” about the Court, its members, its procedures, and its future.

Thank you Dean Chemerinsky for taking the time to answer my questions, and congratulations on the publication of your latest book.

* * * *

Question: For someone who argues cases before the Supreme Court and who writes on and teaches about the Court, yours is a rather provocative title. Why did you choose it?

Chemerinsky: The title captures the thesis of the book. As I reflect on it, I realize that the Supreme Court has often failed, often at the most important times and at its most important tasks. I think that this is a conclusion that both conservatives and liberals can agree to and need to realize. The Supreme Court’s decisions on race, its rulings in times of crisis, its decisions during the Lochner era are powerful examples where I think liberals and conservatives would agree that the Court did great harm to society. That is the foundation of the case against the Supreme Court. I want to see the Court made better and the impetus for thus must be recognizing that there is a need for reform.

Go here for Dean Chemerinsky’s oral argument in the Supreme Court in Tory v. Cochran (2005).

Question: You write: “I discovered in my own mind I have been making excuses for the Court. The Supreme Court is not the institution that I once revered.” What brought about this change of heart for you?

Carrie Buck

Carrie Buck

Chemerinsky: One semester I was teaching Buck v. Bell (1927), the Supreme Court decision that upheld Virginia’s eugenics law and where Justice Oliver Wendell Holmes infamously declared “three generations of imbeciles are enough.” After class, I realized that I had been making excuses for the Court in class. I did some research and realized that 60,000 people were involuntarily surgically sterilized as a result of the Court’s decision and the eugenics movement. As I thought about it, I realized that I often was making excuses for the Court in my teaching and writing.

Question: Like many others (both conservative and liberal), you fault Justice Holmes for his “offensive and insensitive” opinion in Buck v. Bell. Fair enough. What is often overlooked, however, is that Justice Louis Brandeis (one of the most humane defenders of civil rights and liberties) joined that opinion. Why? Does that give you any reflective pause? How do you explain that?

Chemerinsky: As always, the explanation must be complex rather than simple. It was at a time when progressives were defining themselves, in part, by urging deference to government as a way of criticizing the Lochner era decisions. It was at a time when the eugenics movement had great support in society. It was at a time when the Court had begun to protect non-textual rights concerning autonomy (e.g., Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)), but had not gone far in this direction.

Does this give me reflective pause? Buck v. Bell was tragically wrong when it was decided and it is inexcusable that the Court allowed states to surgically sterilize people who had done nothing wrong.

[Re Brandeis: For a critical take on his civil rights/civil liberties record, consider David Bernstein, “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law,” Notre Dame Law Review (2014)]

Question: You maintain “the Supreme Court’s legitimacy is not fragile.” That cuts against the conventional wisdom, certainly the prudential wisdom. Please explain to us why you think this so.

UnknownChemerinsky: The Court’s legitimacy is the product of all that it has done over 200 years.   Over this time, it has firmly established its role.  I agree with what John Hart Ely wrote in Democracy and Distrust (1980) that the Court’s legitimacy is robust. Some such as Felix Frankfurter and Alexander Bickel argued that the Court must be restrained to preserve its fragile legitimacy. Brown v. Board of Education (1954) shows the fallacy of that position. Nothing the Court has done has been more controversial or done more to enhance its institutional legitimacy. There are virtually no instances in American history of people disobeying the Court and those that occurred, such as in defiance of desegregation orders, only enhanced the Court’s legitimacy.

No single decision (or group of decisions) will seriously affect the Court’s legitimacy. I remember after Bush v. Gore hearing people say that the decision would damage the Court’s legitimacy. I was skeptical of such claims and I was right. The Court’s approval rating was the same in June 2001, six months after the decision, as it had been in September 2000, three months before the ruling. It had gone down among Democrats and up among Republicans. It is why I strongly disagree with those who believe that Chief Justice John Roberts changed his vote to uphold the individual mandate in the Affordable Care Act case so as to preserve the Court’s credibility. He knew that whatever the Court did would please about half the country and disappoint about half the country.

Go here for a 2014 video interview with Dean Chemerinsky discussing his new book.

Question: You are critical of the Court’s unanimous ruling in Hui v. Castaneda (2010). There the Court, per Justice Sonia Sotomayor, held that public health service officers and employees could not be sued for Bivens actions for violating citizens’ constitutional rights if the violation was committed in the course of their government duties. The plaintiff can only sue the federal government, not the employees. There were no separate opinions in the case. Given the vote, how do you explain your claim that the Court got it wrong? Bias? Poorly argued? The law clerks’ fault? Or what?

Francisco Castaneda testifying before Congress

Francisco Castaneda testifying before Congress, 2007

Chemerinsky: In Hui v. Castañeda, a prisoner had a lesion on his penis. Francisco Castañeda was suffering enormously and the symptoms got worse and worse. But still the public health service workers refused to let him see a doctor. By the time they let him see a doctor the cancer had spread all over his body. His penis was amputated, but he died a short time later. It was egregious deliberate indifference. But the Court unanimously ruled that the existence of a statute protecting public health workers from suit barred a constitutional claim. This seems wrong: a statute should not bar a constitutional claim.

Why did the Court come to this conclusion? I think this case reflects a much larger trend of the Supreme Court favoring the immunity of government and government officers over remedies for injured individuals. It is reflected in the expansion of sovereign immunity, the growth of absolute and qualified immunity, and the evisceration of Bivens suits.

Go here to read Francisco Castañeda’s testimony before Congress, Oct. 4, 2007; see also Gabriel Eber, “Remembering Francisco Castañeda,” ACLU website, May 5, 2010

Question: You write of the need for scholars to look “cumulatively at the Court’s decisions” re race, civil liberties, economic regulations, school desegregation, effective counsel, labor law, consumer protection, and governmental immunity. Is it really possible to look at the Court through such a broad lens? And if so, what might it tell us that we already do not know?

Chemerinsky: My concern is that the narrower the focus, the easier it is to make excuses for the Court. Any institution will make decisions that we later regard as mistakes. Virtually everyone today believes that Dred Scott (1856) and Plessy v. Ferguson (1896) and Korematsu v. United States (1944) were tragically wrong. But focusing on each creates the view that they are isolated errors. If they are seen as part of a larger pattern, it becomes clearer that there is a strong case against the Supreme Court. It then becomes clear that there is a need for reforms.

Absent extraordinary circumstances, the docket for October Term 2014 is now complete, and it has the potential to be one of the most momentous in history. – Erwin Chemerinsky (Jan. 27, 2015)

Question: You find merit in Texas Governor Rick Perry’s idea for a proposed constitutional amendment limiting each Justice to an 18-year term. Think of it, had such a rule been in place, Holmes could not have written his is dissent in Gitlow v. New York (1925), Brennan would not have authored his majority opinion in Texas v. Johnson (1989), and we would never have read Justice Ginsburg’s dissent in Burwell v. Hobby Lobby (2014). Two questions: (1) Does that concern you? And (2) Isn’t it always an iffy matter to push for constitutional amendments concerning the Court? Read More

3

The Judiciary Dinner

Here is a curious fact that I thought I’d discuss briefly on Super Bowl Sunday.  For decades, one of the biggest events on Washington’s social calendar was the Judiciary Dinner, which was held at the White House for the Supreme Court Justices.  One of the most dramatic of these dinners occurred in January 1937 by Franklin D. Roosevelt right before he would announce his Court-packing plan.  (By all accounts, FDR enjoyed himself immensely.)

At some point this tradition ended, though I don’t know exactly when.  In general, social contacts between the Justices and the White House have declined sharply over the past fifty years.  This is still the custom that a new President pays a social call on the Supreme Court (President Obama did this in 2009), but that’s about all of the interaction that there is.

8

Rotating the Chief Justiceship

John G. Roberts Nominated To U.S. Supreme CourtI thought I’d pose a question as the Supreme Court swings back into action with its conference tomorrow.  Is there any legal barrier to making Chief Justice of the United States a title that rotates among the nine Justices?  In other words, could a different Justice be the Chief each Term, with each taking turns?

Why do this?  Basically, as a way of distributing the assignment and presiding powers.  By tradition the Chief Justice assigns an opinion when in the majority, with the Senior Associate Justice doing so if the Chief is in dissent.  Some appellate courts have used a rotating or random assignment system, and nothing stops the Justices from doing that tomorrow,  Even if they did, though, the power to preside would stay with the Chief (along with the various administrative powers given to that office).

The Constitution does not say that we must have a Chief Justice for life.  We must have a Chief Justice, and Article III judges must serve for life, but there is no such thing as a Chief Judge for life in the circuit or district courts.  Nonetheless, the vote in the Senate to confirm John Roberts was for the position of “Chief Justice of the United States.”  This could mean that only he can be the Chief Justice, but could he delegate to his colleagues and make them “Acting Chief Justice” if he so chose?  Furthermore, if the Senate and President refused to name a Chief Justice after Chief Justice Roberts resigns or dies (and simply name another Associate Justice), would that force the Court to adopt its own system (rotating, seniority, or whatever) to pick a Chief?

UPDATE:  Orin Kerr points to the relevant statutory authority in a comment. I wonder what the powers and duties of the Chief Justice are as defined by statute. (Presiding over a presidential impeachment is the only constitutional duty.)

2

Turning Down a Supreme Court Seat

109px-GovernorMarioCuomoIn the past few days Mario Cuomo and former Senator Edward Brooke passed away.  Both of their obituaries indicate that they were offered and turned down a seat on the Supreme Court.  Someone like me is bound to ask why any healthy person would do that?  I can think of a couple of plausible reasons:

1.  “I can be president.”

If you’re Hillary Clinton in 2009 and President Obama wanted to make you a Justice, then you might well say no.  Justice Arthur Goldberg, on the other hand, was the last sitting Justice to suffer from this delusion.

2.  “I need money.”

A lawyer I once worked with turned down an offer of a federal district judgeship.  When I asked why, he said he had an ex-wife and kids to put through college.  He couldn’t afford to be a judge.  Justice Abe Fortas suffered from this flaw–he should have stayed in practice.

3.  “I would hate being a judge.”

This is the most complex answer.  Some people might just love the action of political life.  Or they might care deeply about foreign policy or economic issues that are not part of a Justice’s usual work. Or they might find much of the caseload dull and technical.  This may well explain why Cuomo or Brooke did not want to be on the Court.

4.  “I have skeletons in my closet.”

Enough said.

5.  “I can’t handle the stress.”

Justice Whittaker (who resigned after four years on the Court) is the poster child for this issue.

As far as I know, Cuomo is the last person to turn down an offer to join the Court, though it is hard to know if others since then have asked not to be considered.

 

12

A Supreme Court Hack

No, I’m not talking about a particular Justice.  The recent hack of Sony Entertainment. combined with Chief Justice Roberts’ Annual Report on the Judiciary, leads me to wonder how the Court should handle a leak of its work product prior to issuing an opinion.  The Chief focused on the Court’s use of technology (or lack thereof) in his report, and security is obviously an important technology issue.  If someone obtained draft opinions, emails, the vote in conference, etc. and disclosed that to the public, what should be the response?

For example, should there be reargument to address points made in the draft opinions?  Supplemental briefing?  Should the Court just affirm without opinion?  Recuse themselves and set up a special appellate panel to render a final judgment?

Somebody could write a fun paper about this.

 

Posner
0

Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” — David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

______________________

The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

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6

The Most Important Statutory Case?

Today I was thinking that King could be the most important statutory case decided by the Supreme Court.  How many other candidates are there?  The early cases under the Sherman Anti-Trust Act come to mind (Northern SecuritiesStandard Oil), and maybe one or two involving the Civil Rights Act of 1964.  Anything else?

UPDATE:  I suppose Ex Parte McCardle was more important.