Category: Supreme Court


UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66



“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198





The Midnight Justice

94px-PVDanielI realized that I’ve never posted about the fun story of Justice Peter Daniel, who was confirmed to the Court in 1841 under strange circumstances.  (It’s was part of my Andrew Jackson research, and now it is part of my research on the Constitution and political parties).

In 1840, the Whigs won a sweeping victory (“Tippecanoe and Tyler Too”) ending twelve years of Democratic control of the White House.  They also won control of Congress for the first time.  In February 1841, Justice Philip Barbour (a Democrat named to the Court by Jackson) died.  President Martin Van Buren decided to act immediately and nominate Daniel (another Democrat) to the Court.  He was confirmed shortly before Inauguration Day.

It is hard to imagine something like this being tolerated today.  A lame-duck President (just beaten at the polls) choosing a new Justice confirmed by a lame-duck Senate (also repudiated at the polls).  Whigs in the Senate boycotted the vote and protested that Van Buren was repeating the precedent of John Adams and his “Midnight Judges.”  Since we got Chief Justice John Marshall as part of that bargain, describing the effort as illegitimate does pose problems, but anyway . . .

What did the Whigs do about Justice Daniel after Inauguration Day?  They could not impeach and convict him, but they could make his life difficult.  So they passed a circuit reorganization bill that gave Daniel circuit riding duties in Arkansas and Mississippi–as far from Washington as possible.  Given that he was from Virginia, this assignment was especially burdensome and unusual in the sense that circuit riding was normally tied to where you lived and had practiced.  Congress may have hoped that Daniel would resign as a result, but he did not.  He stayed on the Court long enough to join the majority in Dred Scott.


The Four Horsemen

84px-Jamescmcreynolds120px-Willis_Van_Devanter_-_seated94px-Senatorsutherland96px-Justice_Pierce_Butler_2One thought that keeps crossing my mind as I research Justice Sutherland is whether this should be a book about the Four Horsemen.  This sort of project would have several advantages.  First, we think of these Justices as a group.  Second, telling four stories may be better than one–there’s lots of personal detail in four stories that may be lacking otherwise.

What are the conceptual problems?  One is that Justice McReynolds was a total jackass. Having to spend 25% of your book talking about a racist anti-semite is not much fun. (Sutherland, by contrast, was a gentle person who was well liked.)  Another is that Justice Van Devanter wrote no significant opinions due to his writer’s block.  No matter how important he was behind the scenes (and he was very important), that’s hard to illuminate.  (I don’t know enough about Justice Butler to say whether he’s a good subject.)

Incidentally, Barry Cushman has a paper on SSRN talking about the law clerks of the Four Horsemen, if you’re interested.


Your Daily Provocation

From Daniel McCarthy:

“As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.

But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.”

McCarthy doesn’t add the more cynical supposition that criticism of originalism on the right is a sure way off the greased (federalist) career path that the last thirty years has carved out. But the buried argument in this paragraph is worth excavating: the success of the counterrevolution has blinded those who came after to how adventurous – and wrong – the original Warren-court’s premises about judicial and national power and competency turned out to be. A version of this argument is now the CW, at least in some circles.  And so I wonder…how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?


Corporate Personhood is not the Enemy

The recent Citizens United decision has spawned a wave of really awful political critique, mostly from progressive writers and activists. A news story from earlier this year highlights one of the wackier critiques, in which a man drove in the carpool lane along with a copy of Articles of Incorporation. When pulled over, he turned it into a media event:

Your honor, according to the vehicle code definition and legal sources, I did have a ‘person’ in my car.But Officer ‘so-and-so’ believes I did NOT have another person in my car. If you rule in his favor, you are saying that corporations are not persons.

The carpool-lane stunt is probably the most over-the-top of responses, but many other critics have weighed in. For instance, the Occupy movement passed a resolution against corporate personhood, while an internet petition to “end corporate personhood” has garnered hundreds of thousands of signatures. Clearly, many people are deeply upset about the idea of corporate personhood.

They’re also, as a general matter, deeply misguided. Read More


United States v. Bhagat Singh Thind

From time to time I’m going to post about Justice Sutherland’s significant opinions, as I conduct research to see if I want to write his biography.  My first example is United States v. Bhagat Singh Thind, a 1923 case that presented the issue of whether a Sikh born in India could be naturalized under the prevailing statute, which said that you had to be “white” or of “African descent.”  Thind argued that he was a Caucasian (in other words, Aryan) and thus was white pursuant to the statute.

Sutherland began by explaining that the term “caucasian” was unknown in 1790 when the first naturalization statute was written.  He also argued that “[i]n 1790 the Adamite theory of creation—which gave a common ancestor to all mankind—was generally accepted, and it is not at all probable that it was intended by the legislators of that day to submit the question of the application of the words ‘white persons’ to the mere test of an indefinitely remote common ancestry, without regard to the extent of the subsequent divergence of the various branches from such common ancestry or from one another.”  Sutherland therefore concluded that the stature was intended “to include only the type of man whom they knew as white [in 1790]. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to ‘any alien being a free white person’ it was these immigrants—bone of their bone and flesh of their flesh—and their kind whom they must have had affirmatively in mind.”

He concluded with this lucid (though unfortunate) passage on the state of race relations in the 1920s:

“What we now hold is that the words ‘free white persons’ are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word ‘Caucasian’ only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distincitive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.”

This was a unanimous opinion.  Congress revised the naturalization statute to include South Asians in 1946, though large-scale immigration on the score did not begin until the 1965 Act ended the national quota system.




Ex Officio: Select Conference Notes from the Burger Court Justices’ views on Campaign Finance Laws

McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees.  This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976).  The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.

Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.

Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny.  That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act.  Here again, the Court was badly divided.

In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.

* * * * *

The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975: 

Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”

“The disclosure provisions are the heart of the whole thing for me.  I think these provisions are constitutional and highly desirable.

Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”

Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”

“The expenditure limitations are wholly unconstitutional.”

“I see no First Amendment problems in political committees.”

Read More


The Forgotten Memoir of John Knox

87px-James_C._McReynolds_-_c1913I’ve started reading this book, which I’d heard about for years but never picked up.  For those of you who don’t know, John Knox was Justice James McReynolds’ law clerk during the 1936-37 Term.  I would highly recommend this for many reasons.  First, the book is a window into a world that no longer exists.  The Supreme Court functioned in a different way (McReynolds worked at home).  The social world of Washington DC was also radically different (people still left calling cards).  And race relations were troubled (the relationship between the clerk and the African-American staff stands in sharp contrast to the Justice’s treatment of them).  Second, Knox provides some excellent anecdotes about his encounters with Brandeis, Cardozo, Van Devanter, and the other Justices.  Third, the memoir was written in the midst of the Court-packing fight, and there are great insights about that as well.

Finally, the book is often laugh-out-loud funny.  Part of that is because Justice McReynolds had such a bizarre personality.  (For example, he took a bath every day and would swish around in the tub and flood the room.)  Part of it is because Knox was often clueless (the part where he answers the phone and mistakes the Justice’s girlfriend for another girlfriend is priceless.)  And then there’s the fact that the McReynolds’ staff called him “Pussywillow” behind his back.  All good fun for law nerds.


The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)

In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation.  The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation.  Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.

How can we distinguish law’s homophobia from law’s heterophilia?  To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic.  However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic.  Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.

Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.

While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System.  Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.

Part I of this post.


Law Nerd Alert

92px-Senator_George_Sutherland_2I’m going to explain in some future posts why I’ve decided to research Justice George Sutherland for a biography, but let me start with this story.  Sutherland was by all accounts a charming man who loved conversation (not surprising given that he was a successful politician who reached the Senate), and when the Justices got together for their weekly conference, Justice Holmes would often bow when Sutherland entered the room and say “Sutherland, J.  Tell me a story.”  And he invariably did tell one that left everyone laughing.