Category: Supreme Court


Hypothetically Speaking: Justice Breyer’s Dialectical Propensities

220px-StephenBreyerIn July of 1994, Judge Stephen Breyer testified before the Senate Committee on the Judiciary in connection with his nomination to the Supreme Court. In responding to a question posed by Senator Howard Metzenbaum, Judge Breyer could not resist the temptation to respond by way of a hypothetical:

Let’s say—and I will use a hypothetical, I don’t like to use that here, because I know this isn’t a classroom and I know these are serious matters and I don’t like to be professorial, frankly, but I think in this instance, maybe thinking of, say, they turn this wheel around and they charged 8 cents for the electricity, and that might help. They then transmit it across a wire. They then sell it to them- selves, because they are in the retail operation, too. And they sold it, let us say, for 10 cents. So they make it for 8 cents and they sell it to themselves for 10 cents, and the price to the consumer is 10 cents. Now, the plaintiff in this case came along and said, you see, 8 cents is what we have to pay for it, because they sold a little bit to independent retailers, too, and that plaintiff was an independent retailer. And that independent retailer . . . .

In the interest of brevity, I abbreviated my quotation of the Judge’s hypothetical.

As Court watchers well know, the hypothetical (typically long and complicated) is his signature move. What prompted my thoughts on Justice Breyer and his courtroom style were some recent comments (see also here and here) made about Justice Clarence Thomas and his courtroom style. That said, I thought I would share a few examples, albeit shorter ones, of Justice Breyer’s dialectical propensities.

During the course of oral arguments in FCC v. Nextwave Communications, Inc. (2002), a statutory interpretation case, Justice Breyer ventured to make a point by way of a hypothetical:

I learned the second year of law school–and obviously many of my colleagues don’t agree with me, but I learned the second year of law school that when you have a text which says “all,” that there are often implied, not-written exceptions. . . ‘No animals in the park’ doesn’t necessarily apply to a pet oyster . . . . 

Or consider another hypothetical Justice Breyer posed to Professor Randy Barnett, who represented the Respondents in Gonzales v. Raich (2004):

You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. … So you’re going to get around all those examples by saying what?

Of course, other examples might have been selected (say, Breyer’s hypotheticals in McCutcheon v. FEC), but that is an assignment for a more extended discussion. For now, it is enough to ask: How have Court watchers responded to the Justice Breyer’s style of questioning? Here are a few random samples of what I turned up in response to that question.

A former Harvard Law School professor, Breyer is the most verbose of the justices. He’s unleashed nearly 35,000 words during oral arguments since January, a transcript review shows. Repeatedly, he insists that lawyers imagine scenarios that are parallel to—or perhaps perpendicular to—the facts at hand. . . . When they work, hypothetical questions can reveal a contradiction or expose a fundamental legal principle. Of course, they don’t always work. — Michael Doyle, March 16, 2007

Breyer is the Court’s most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and hyoccasionally bizarre. Mark Sherman, March 2, 2008

During Supreme Court arguments Wednesday in a case involving claims against high-ranking government officials over post-Sept. 11 detention practices, discussion frequently turned to an unusual hypothetical scenario posed by Justice Stephen Breyer: a lawsuit over a mouse found in a bottle of Coca-Cola. Though Chief Justice John Roberts Jr. at one point called the hypothetical “by its nature particularly absurd,” he and the other justices who adopted it seemed to find it quite instructive. Tony Mauro, December 11, 2008

Justice Breyer . . . occasionally runs the hypothetical too far out, and it becomes as complex as the underlying legal concept he is trying to make intelligible. Lyle Denniston, December 7, 2011

Justice Breyer is notorious for asking long-winded hypotheticals in which he can occasionally get lost, and unfortunately these hypotheticals may waste an advocate’s valuable time and may not be pertinent . . . . Ryan Malphurs, 2013

Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again. Bob Bauer, October 9, 2013

Justice Breyer . . . is the Talmudic scholar of hypotheticals. Art Lien, February 25, 2014

Stephen Breyer’s interminable law professor hypotheticals . . . are about drawing attention to themselves rather than helping the Court work through issues. Scott Lemiux, February 26, 2014


Justice Stevens–Present and Past

103px-JohnPaulStevensJohn Paul Stevens has a new book coming out on how the Constitution should be amended.  Not bad for someone who is about to turn 94.

Recently, I came across a 1957 Harvard Law Review piece by Alexander Bickel commenting on a book that profiled some members of the Supreme Court.  Professor Bickel noted that: “Mr. John Paul Stevens of the Chicago Bar contributes a most artistic, affectionate, but withal not uncritical sketch of a Justice of our own day, the late Wiley Rutledge.” This must be the first time that the future Justice was mentioned in the HLR.



Justice Scalia Has Gone too Far this Time

Justice Scalia has always been a lightning rod prone to inflammatory states. When Justice Scalia wrote that the majority opinion in Lawrence v. Texas would result in laws against masturbation (which did not actually exist) being found unconstitutional, some wondered if he had lost his grip on reality. And when he rewrote the history of the exclusionary rule by contending that “[s]uppression of evidence, however, has always been our last resort, not our first impulse,” many thought he was reading a different set of cases than the rest of us. His separate opinion in Arizona v. United States discovering inherent state sovereignty beyond constitutional guarantees while injecting Obama’s immigration policy statement made after oral argument in the case certainly raised a few eyebrows. Many thought he was a little over the top in stating that: “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state…” The list could go on.

But this time Justice Scalia has gone too far. He has crossed a line that cannot be uncrossed. In a public forum, he stated that Chicago-style pizza is not “pizza” at all joining  Jon Stewart in the unjust and unwarranted attack on one of the greatest foods on Earth.


McReynolds on Interpreting Statutes

84px-JamescmcreynoldsOne thing that is evident when you go through Justice McReynolds’ opinions is that he was the conservative version of Holmes.  What I mean by that is that he typically wrote brief opinions and was pretty good at writing sharp prose.  (When McReynolds tried to write a longer opinion, though, things went wrong.  He was fond of cutting and pasting long quotes from past cases or historical sources.)

Consider this dissent in Federal Trade Comm’n v. Klesner, 274 U.S. 175 (1927) (this is the entire opinion)

I think the judgment of the court below should be affirmed.

If the cause involved no more than interpretation of a doubtful provision in the statute, it hardly would be worth while to record personal views. But judicial legislation is a hateful thing and I am unwilling by acquiescence to give apparent assent to the practice.

Possibly-probably, perhaps-if attention had been reasonably called to the matter Congress would have authorized the Court of Appeals for the District of Columbia to enforce orders of the Trade Commission. But the words of the enactment, which we must accept as deliberately chosen, give no such power; and I think this court ought not to interject what it can only suppose the lawmakers would have inserted if they had thought long enough.


SCOTUS-Books-in-Brief – Goodbye to the Sloooow Past!

Top Five Books has just announced a forthcoming series of e-books on Supreme Court cases. The series is titled “SCOTUS: Books-in-Brief.”  It is designed to provide readers – lay and scholarly alike – with a reliable, informative, and engaging narrative account of a significant Supreme Court ruling shortly after it comes down. Provided in e-book format, each work will be economically priced and accessible on multiple e-platforms.

Each e-book will be available within a week of the decision and will consist of an historical account of the general subject, a full statement of its facts, profiles of the parties, analyses of the lower court judgments, examination of the briefs filed and the oral arguments in the WMS-cover2Supreme Court, a discussion of the larger issues raised by the case, an analysis of the final judgment, and a comprehensive timeline – and all completed and ready for e-publication shortly after a Court ruling is rendered.

The first book in the series (now virtually complete at 75,000 words save for commentary on the forthcoming ruling) is When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. (See excerpt here.)

Writers Wanted!

If you are a good writer, have expertise in a certain area pertaining to a case before the Supreme Court, and can complete a 30,000-40,000 word manuscript (depending on the complexity of the case and subject matter) in a relatively short period of time, then contact us – we’d love to hear from you.

For more information about those on the advisory board and the series generally, click here.


How are Korematsu and M’Culloch alike?

Recently there has been some discussion about whether the Justice Department should formally disavow any future reliance on Korematsu and ask the Supreme Court to overrule the case. It may come as a surprise to some that Korematsu is still good law, but the problem is that a similar situation hasn’t really arisen since the 1940s.  How, then, can the Court overrule the case? Dicta is a possibility, but it is easy to see why the Justices may not want to overrule a case in that way.

The same issue arose with respect to M’Culloch v. Maryland. As I explain in my book on Jacksonian Democracy, the Taney Court probably would have overruled that decision if given the opportunity. The obstacle was that–after the charter of the Second Bank of the United States expired in 1836–there was no way to bring a case to the Court to overrule the decision. Lawyers came up with creative ideas to solve this dilemma, but to no avail.  That was lucky for the future of constitutional law, but the stain of Korematsu is the price of this common law structure.


Oral Argument in West Coast Hotel v. Parrish

Here’s something that’s been bothering me. I cannot find any accounts of the oral argument in West Coast Hotel, which was the case that marked the Court’s switch on the New Deal.  Newspaper coverage of oral arguments was spotty back then.  Some cases got a lot, but most got none.  (The New York Times, for example, merely noted that the argument in West Coast Hotel happened without saying more.)  And there were no transcripts of argument the way that there are today.

I ask because I find it surprising that Justice Roberts did not tip his hand at oral argument that he would switch his view on the constitutionality of the minimum wage for women.  Or maybe he did and nobody was paying attention.  I’ll keep looking to see if some other paper did provide more detail on what happened in Court, but it’s a shame if no record exists at all.


Crazy Justice McReynolds Stories I

81px-Picture_of_James_Clark_McReynoldsSince I’m going to write about the Four Horsemen, I might as well start a series that we’ll call “Boorish Behavior by Justice McReynolds.”  I can get many posts out of that, to wit:

1.  When Justice Stone remarked that a lawyers’ argument was the dullest he had ever heard, McReynolds replied “The only duller thing I can think of is to hear you read one of your opinions.”

2.  When McReynolds was late to oral argument, Chief Justice Hughes sent a page to fetch him.  The page returned with a message “Justice McReynolds said to tell you he doesn’t work for you.”

3 .  In 1924 there was no official portrait of the Justices because McReynolds refused to sit next to Brandeis.

McReynolds was also pleasant and generous sometimes, though he didn’t make a habit of it.


What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.


Justice McReynolds and the War on Drugs

I’m come across a really interesting case that I wanted to share.  In Casey v. United States, 276 U.S. 413 (1928), an attorney was convicted of supplying morphine to some of his clients (in prison) under a statute that made it unlawful to purchase morphine from an unauthorized source . The statute also said that if you possessed the drugs in a package without official stamps (as Casey did) that was prima facie evidence of guilt. Justice Holmes wrote a 5-4 decision upholding the conviction and rejecting Casey’s Sixth Amendment claim.

McReynolds dissented, along with Brandeis, Butler, and Sanford.  Here is the text of McReynolds’ dissent (it’s a very powerful critique that could be used today).

I accept the views stated by Mr. Justice BUTLER. With clarity he points out the unreasonableness of the construction of the statute advocated by counsel for the United States. But I go further.

The provision under which we are told that one may be presumed unlawfully to have purchased an unstamped package of morphine within the district where he is found in possession of it conflicts with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment. The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.