Author: Gerard Magliocca


No Respect from “The Conspirator”

So I was excited to learn tonight that Robert Redford has a new movie coming out about the trial of Mary Surratt and the conspiracy to assassinate President Lincoln.  “The Conspirator” has a great cast:

Robin Wright — Mary Surratt

James McEvoy — Frederick Aiken (defense counsel for Surratt)

Kevin Kline — Edwin Stanton

Tom Wilkinson — Reverdy Johnson

Who is missing from this list?  John Bingham.  One of the three prosecutors in the trial.  The guy who was later accused of misconduct that led to Mrs. Surratt’s execution.  The Fourteenth Amendment guy.  He’s not in the movie.

Note to Hollywood–hire more legal historians as movie consultants.  I get along well with starlets.


A Supreme Court Filibuster

With the recent walkout in the Wisconsin Senate still fresh in our minds, I’m wondering about the following problem.  A federal statute (28 U.S.C. s. 1) provides that six Justices constitute a quorum.  Suppose that in a given case four Justices refuse to participate any further because they are outraged at the draft opinion circulated by the majority.  Can they effectively filibuster that opinion until it’s withdrawn?

I think one question is when does a quorum attach.  Is it when the cert petition is voted on?  When oral argument happens?  When a case is discussed in conference? When the opinion is handed down?  Do you have to boycott all cases and petitions that are pending, or can you do it selectively?  I don’t know.


Talk About Disregard for Federalism

I’m reading a new biography of Otto Von Bismarck, the Iron Chancellor of Prussia and Germany.  You could make a pretty good argument that the two most important events in the nineteenth century were the American Civil War and the unification of Germany.  Prussia remained a state within Germany until 1947, when it was abolished by a decree of the Allied Occupation Authority, which said:

“The Prussian State, which from early days has been a bearer of militarism and reaction in Germany, has ceased to exist.”

The author of the biography claims that Prussia was the only state in world history to be abolished by decree.  Is that true?  Somehow that doesn’t seem right.


John Bingham on Interpretation

Over the next several months, I am probably going to put up a fair number of “here’s-something-interesting-that-John-Bingham said” posts.  For instance, in a debate over a statute in 1869, Bingham rejected the interpretation offered by a colleague of the provision under consideration with this observation:

“[I]t was once upon a time ruled in the Supreme Court, in an opinion delivered by the late Chief Justice, that the enactors of laws could not give interpretation to their own enactment by what was said in-debate in the legislative body; that the law was to be construed by its own words, and not by the explanation which gentlemen make as to their purpose in introducing or supporting a bill.”

I should add that Bingham said this (or something very similar) several times over his years in Congress, so I think it’s fair to say that this was a principled position rather than a debating point trotted out to obtain a result.


More Constitutional Liability Rules

Last week I did a series of posts on Balkinization about “constitutional liability rules.”  The upshot is that sometimes the best way to design relationships between or among institutions is to allow one of them to exercise a right but face a penalty if it does.  This can be, though is not always, better than allowing one body to issue a direct command that another must obey.  That may be because it is easier to get political agreement on a liability rule, because a liability rule is more protective of institutional rights than a command but facilitates action more than a property rule (giving an institution an unfettered choice), or because an organ possesses some kind of veto that cannot be overridden by a command without massive costs.  Here are some examples from my prior posts:

1.  The Spending Clause and the “anti-commandeering/sovereign immunity” cases (Congress cannot order the states or state officials to do certain things, but they can impose costs on them if they do not.)

2.  Section Two of the Fourteenth Amendment (A state could discriminate on the basis of race in voting, but if it did its representation in the Electoral College and the House of Representatives would be reduced).

3.  Lords-packing in 1832 and 1911 (The House of Lords could reject crucial legislation, but if it did so its voting power would be diluted.)  See also Court-packing in 1937.

4.  Congress’s threat to impose an economic embargo on Rhode Island in 1790 because it refused to ratify the Constitution (Rhode Island could continue to hold out, but would pay a cost).

5.  The ratification of the Fourteenth Amendment in the South (A state could reject the Amendment, but if it did then it would remain under military occupation).  See also the Treaty of New Echota, basically presenting the same choice to the Cherokee Nation if it refused to accept removal to the West.

Below the fold, I want to explore two more examples–the Direct Tax Clause and the Equal Protection Clause.

Read More


Timing of the Health Care Litigation

Over on Brad Joondeph’s indispensable blog about the litigation over the individual mandate, he has posted a thoughtful analysis arguing that the Supreme Court will decide the issue next Term.  I’m not sure whether that is correct, but his prediction raises the question of what the best strategy is for each side in this debate.  The appellate panels that will hear cases this summer will have a lot of discretion in determining when Supreme Court review will happen. A panel could take a lot of time to issue its opinion or push it out rapidly.  A dissenting member of a panel could take a long time to issue a dissent or write that quickly.  Then there’s the potential for en banc review, not to mention a defensive denial of cert by some of the Justices.  (After all, nothing says the Court will take the first case presented to them.)

I think the answer turns on whether you think President Obama will be reelected.

If your answer is yes and you want the mandate to be struck down, then I think you would want the Justices to decide this before the election.  That’s because a reelection might well convince some Justices that the country supports the constitutional understanding behind the mandate.  The opposite would be true if you want the mandate upheld.

If your answer is no and you want the mandate struck down, then I would think you’d want the Court to wait until 2013 because then some Justices might see the election as a repudiation of health care.  The opposite would be true if you want the mandate upheld.

Of course, what I just said assumes that Obama’s reelection is an independent event.  What if you think that the Court’s opinion would influence the election?  (By riling up the Tea Party or angering liberals, for example)  Then you may want to push ahead or go slow depending how you think the Court will decide and what effect that would have on public opinion, which is obviously a much more complicated assessment.

One thing is certain.  At least one of the judges on one of these appellate panels will be thinking about these questions over the next few months.


Random Trivia

I didn’t realize until the other day that only four Chief Justices of the United States were appointed by Democrats:

1.  Roger Taney (Andrew Jackson)

2.  Melville Fuller (Grover Cleveland)

3.  Harlan Fiske Stone (FDR)

4.  Fred Vinson (Harry Truman)

That’s it.  All of the others were nominated by Republicans or Federalists.  And that also means that the last Democratic Chief Justice was picked in 1946–talk about a long drought.


BTW, I want to congratulate Duke on returning to the Championship game.  Doing that two years in a row is what you’d expect from a powerhouse program.

Oh, that’s right . . .  Butler is the one that got back to the Final.  Go Dawgs!


What If?

The Indiana Law Review held its Symposium on “What If?  Counterfactuals in Constitutional History” yesterday and it was a terrific event.  Kudos to the panelists, the students, the moderators, and everyone else at my law school who put this together.  When the papers are available (in draft form or otherwise), I’ll post links to them here.

Of course, I don’t hold a copyright (or a business method patent) on this idea.  There’s no reason why there can’t be many more conferences organized around the “What If” theme.


Introducing Brian Kalt

I am pleased to introduce Brian Kalt, who is returning for a second stint as a guest blogger on CoOp. Brian is an Associate Professor of Law at Michigan State University College of Law.  He is the author of Sixties Sandstorm:  The Fight Over Establishment of a Sleeping Bear Dunes National Lakeshore, 1961-1970 (2001), which is available here.  Brian’s articles have appeared in journals such as Georgetown Law Journal and Constitutional Commentary, and will be part of a book on Constitutional Cliffhangers:  A Legal Guide for Presidents and Their Enemies, forthcoming from Yale University Press.

Prior to joining Michigan State, Professor Kalt earned his A.B. from the University of Michigan in 1994 and his J.D. from Yale Law School in 1997.  Following law school, he clerked for Judge Danny Boggs on the Sixth Circuit and then practiced at Sidley and Austin.  Brian is also a former winner on “Who Wants to Be a Millionaire,” an excellent bowler, and my former College Bowl rival.

Welcome Brian!