Aug 22, 2014

RBG: Roberts “Distanced Himself From the Court in the Health Care Decision”

After NFIB v. Sebelius, Jan Crawford, and others reported that the Scalia-Kennedy-Thomas-Alito bloc was incensed at the Chief Justice. So much so that they didn’t even cite his opinion. (In my book, I didn’t quite buy into this narrative, but it prevailed)

Yet, the Justices consistently said in press statements that there isn’t such anger. Justice Scalia did an interview on CNN in July 19 with Piers Morgan, where he emphatically rejected that there was a “falling out” with the Chief.

But now, Justice Ginsburg suggests otherwise. In her interview with Marcia Coyle, she notes that the Chief’s decision “distanced” himself from the Court:

NLJ: The chief justice will begin his 10th term in October. Has he changed in any way over the years here?

GINSBURG: He was always good at running our conferences. He is a little more relaxed than the old chief. He is a great representative of the court because he can give the best two-minute speech. I love it when he gives the closing remarks at the court’s musicale because I wonder what is he going to come up with and it is always something terrific. And of course, he did distance himself from the court in the health care decision. He knew he was going to take a lot of criticism from his home crowd for that and I think the same thing for the Massachusetts abortion-clinic case.

He is very smart and he writes well-written opinions.

RBG already cast Justice Sotomayor in a bad light. Here, she highlights fractures within the Court with respect to the Chief, and his NFIB dissenting colleagues. This is in very poor taste. I’m not sure what she, or the Court, stands to gain from that.

Further, RBG continues to focus on how the Court reacts to public opinion, noting that Roberts knew “he was going to take a lot of criticism from his home crowd for that,” with “for that” referring to upholding the law. The study of the impact of the media on the Chief’s decision was something I’ve written a lot about. While the Chief (wisely) has not commented, RBG seems to think this was at least something on his mind.

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Aug 22, 2014

Details on August 2014 Contraception Mandate Exemption

CMS has posted a Fact Sheet discussing the two new accommodations to the contraception mandate.

First, non-profits like Wheaton College will not have to fill out a form, but will only have to notify HHS that they object.

In August 2014, in light of the Supreme Court’s recent interim order in a case involving Wheaton College, interim final regulations were published to establish another option for an eligible organization to avail itself of the accommodation. Under the interim final regulations, an eligible organization may notify the Department of Health and Human Services (HHS) in writing of its religious objection to contraception coverage. HHS will then notify the insurer for an insured health plan, or the Department of Labor will notify the TPA for a self-insured plan, that the organization objects to providing contraception coverage and that the insurer or TPA is responsible for providing enrollees in the health plan separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. 

However, the fact sheet makes clear that the same duty is triggered regardless of whether a form is filled out or HHS is notified:

Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same, as discussed in this Fact Sheet. The interim final rule solicits comments but is effective on date of publication in the Federal Register.

Second, this new non-profit exemption is extended to certain for-profit entities.

Also in August 2014, in response to the Supreme Court’s recent decision, in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), proposed rules were published that solicit comments on expanding the availability of the accommodation to include a closely held for-profit entity that has a religious objection to providing coverage for some or all contraceptive services. 

The majority opinion in Hobby Lobby went out of its way *not* to define what a closely-held corporation is, for purposes of RFRA. The proposed rule offers to alternatives, both limited to non-publicly traded companies. The first concerns the number of owners.

The proposed rules describe two alternative approaches for defining such an entity. Under one approach, the entity could not be publicly traded, and ownership of the entity would be limited to a certain number of owners. 

Or the second concerns the concentration of ownership:

The proposed rules describe two alternative approaches for defining such an entity. Under one approach, the entity could not be publicly traded, and ownership of the entity would be limited to a certain number of owners. 

Also, corporate law scholars should take an interest in how a corporation can take action to object to the mandate:

he rule also solicits comments on other possible approaches and on documentation and disclosure of a closely held for-profit entity’s decision not to provide contraceptive coverage. The proposed rules further provide that valid corporate action taken in accordance with the entity’s governing structure, in accordance with state law, stating its owners’ religious objection can serve to establish that the entity objects to providing contraceptive coverage on religious grounds. Comments on these proposed rules are being accepted for 60 days after publication in the Federal Register

As I noted in a previous post, ACLJ is already on record opposing both proposals, though I am doubtful they can raise successful RFRA arguments here.

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Aug 22, 2014

ACLJ Still Opposed To Wheaton College Contraceptive Mandate Compromise

The ACLJ put out a press release indicating that it will oppose the Administration’s new exemptions for the contraceptive mandate. Specifically, non-profits and for profits alike will not have to fill out any form, but need only notify the government they object.

On the accommodation for non-profits, ACLJ writes:

In reality it’s another slap in the face for religious based nonprofits and an affront to rationally based thinking…

Here’s HHS’s own conclusion about the affect of the new “option” for the nonprofit accommodation, “Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same . . . .”

Wait, religious nonprofits can opt out, but their insurance provider, that they have contracted with, and who they are paying to provide health insurance is required to give their employees free abortion pills?  Precisely.  Nothing changes.  You can dress it up.  You can call it what you like, but the Obama Administration is still forcing religious non-profits to provide abortion pills for their employees.

On the accommodation for for-profits, like Hobby Lobby:

What’s even worse is the Obama Administration’s second proposal.  They now want to force closely held for-profit businesses like Hobby Lobby and our numerous clients – each of which have court rulings saying they don’t have to comply with the unlawful mandate – to well … comply with the unlawful mandate under the ruse of the same “accommodation” as it has proposed for nonprofits.

I’m sure ACLJ and other groups will continue to challenge these new accommodations. But I am really, really doubtful the Court will find this proposal–which it proposed in Little Sisters and Wheaton College–to be invalid. Stay tuned.

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Aug 22, 2014

Little Sisters of the Poor v. Sebelius (Ginsburg, J., dissenting from granting of stay on behalf of Sotomayor, J., after the fact)

In her interview with Marcia Coyle, Justice Ginsburg attempted to explain why Justice Sotomayor wrote such a “blistering” dissent in Wheaton College.

NLJ: A day after the Hobby Lobbydecision, the court, with three dissents, issued an injunction against the application of the contraceptive insurance requirement to Wheaton College, a religious institution. Wheaton had objected to getting an exemption via a self-certifying letter stating its objections to the coverage. You assigned the Wheaton dissent to Justice Sotomayor as well and she wrote a blistering opinion.

GINSBURG: That may have been the same thing. She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. Besides, there was enough in my dissent in Hobby Lobby. I had said everything I wanted to say on that subject so it was appropriate for somebody else.

This response makes no sense on three levels. RBG is effectively arguing that Sotomayor didn’t mean what she said in Little Sisters of the Poor, and Wheaton College was her responsibility to tell (who, the public?) what her view was.

First, what difference does it make that she was the Circuit Justice. As the order makes clear, the injunction was “submitted to Justice Sotomayor and by her referred to the Court, the Court orders.” She didn’t act alone, as RBG would suggest. The order spoke on behalf of the Court. In contrast, in Wheaton College, where Justice Kagan was the Seventh Circuit Justice, Kagan dissented. The Court’s order begins, “The application for an injunction having been submitted to JUSTICE KAGAN and by her referred to the Court, the Court orders.” But, Kagan dissented! So this is a specious line of argument. There’s no obligation on the Circuit Justice to join an order referred to her.

Second, if RBG or Sotomayor didn’t agree with the order, then they can dissent. They can’t dissent after the fact. In a recent interview, Justice Ginsburg made an odd point–just because a Judge does not dissent from an order granting or denying a stay, doesn’t  mean the Justice actually agree with the order:

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. ‘‘When a stay is denied, it doesn’t mean we are in fact unanimous,’’ she said.

If a Justice does not agree with an order, he or she dissents. Perhaps if she doesn’t agree on the merits, but doesn’t want to make a statement about it, that means she agrees with the order. Justices routinely dissent from the denial of a stay of a death penalty. But this Monday-Morning Quarterbacking from the Justice is bizarre.

Third, but really, Ginsburg isn’t opining on what she would have done. Her comment only focused on Sotomayor. She is again selling out Sotomayor, and noting that she cast a vote she didn’t believe in–apparently as she did with her Fisher vote. By saying “she wanted to make clear what her view was,” Ginsburg suggests that her views were not what she joined in Little Sisters. (I note in this post that there wasn’t much of a difference between Wheaton College and Little Sisters).

Such odd behavior from Justice Ginsburg.

In a related context, I have looked to the fact that none of the Justices have dissented from the Court’s stays of same-sex marriage decisions in Utah and Virginia as evidence that all of the Justices agree that a stay should be granted. This is not to say the Justices all agree on the merits–but they at least agree on the procedural issue. Now, I don’t even know if I can think that anymore.


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Aug 22, 2014

RBG on Sotomayor: Wrote Schuette Dissent Because “Distressed” about Press “Reports” On Fisher

One of the most jarring, and dare I say demeaning, lines in Justice Ginsburg’s interview with Marcia Coyle was not directed at any of the conservative Justices, but her own colleague on the left, Justice Sotomayor. Usually, the issue of opinion assignment is one best left for speculation. Maybe, we think a Justice asks for an assignment because he or she has a special interest, or expertise, or passion in a certain area. Or maybe an opinion was assigned to the swing vote to keep a majority together. These are the kinds of things I am most comfortable finding out years later when papers are released.

But Justice Ginsburg’s explanation for why Justice Sotomayor wrote the dissent in Schuette (which only RBG joined) was disquieting–Sotomayor was upset by press reports about her in Fisher, and wanted to show people what she really thought about affirmative action.

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did.

It was an agreement between the two of us that she would write.

Oh my. This paints Justice Sotomayor in such a negative, damaging, and weak light.

First, what does it mean that she “went along with the court.” She joined the majority opinion. That’s a vote, not passive acquiescence. Granted the opinion was narrow, but Sotomayor could have dissented or concurred if she wanted too. RBG dissented. But Sotomayor didn’t. Perhaps the Justices wanted to build consensus for a narrow opinion. But that’s a vote! Why would Ginsburg characterize her in this manner?

Later in the interview, Ginsburg also diminishes Sotomayor’s vote by noting that she didn’t actually agree her decision to grant the stay in Little Sisters of the Poor, but then doubled back in Wheaton College.

She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. 

(I’ll come back to this in a different post).

Second, if true, it is scary that she is so responsive to press reports, that she wants to write a vigorous dissent to set them right. Justice Scalia and Thomas go out of their way to say they don’t read press accounts of the Court. They are lambasted for being out of touch. But that’s the point. They want to be insulated. Is Sotomayor that fragile and thin-skinned that she feels compelled to write an opinion based on what the media says. I would hope that a Justice would have more fortitude than to be so easily impacted by the press. She shouldn’t have to “quell” “doubts” of the chattering class.  And here, the coverage was mild. Compared that to the full court press on the Chief in NFIB!

But you know what? It worked. Attorney General Holder, with the backing of the White House, spoke glowingly of Sotomayor’s dissent. It was the talk of the town in D.C. And the press now knows they can impact a Justice. It’s one thing for us to speculate about it. But now the Justices confirmed it.

Third, this brutus attack comes from her friend. Et Tu Ruthy?

My opinion of Sotomayor and Ginsburg was significantly weakened because of this interview. Sotomayor, for being such a pushover from the media, and Ginsburg for making an unforced error and selling out her friend.


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Aug 22, 2014

McCullen v. Coakley (Ginsburg, J., Concurring after the fact)

When McCullen v. Coakley was decided, I was somewhat surprised that Justice Ginsburg did not write separately. Though the opinion was, on its face unanimous, I agree with Justice Scalia that it was a “specious unanimity.” But, don’t worry folks. There was a Justice Ginsburg concurring opinion. You won’t find it in the U.S. Reports, or even her personal archives. You’ll find it in an interview she gave with Marcia Coyle. You see, Justice Ginsburg concurred after the fact to stress that the key factor was that the regulation was “content neutral.”

NLJ: You have called the decision striking down the abortion-clinic buffer-zone law in Massachusetts a “good decision,” which you joined. Why did you join the chief justice’s opinion?

GINSBURG:It made a very important case that protests before abortion clinics, that regulation of those protests are content-neutral. That was the most important thing to me about the chief’s decision. The problem didn’t exist for hospitals, in general. The problem existed for one kind of place, and the legislation was aimed at ensuring access. Where Massachusetts went wrong was it went much further than necessary.

My initial view was this is permissible legislation but if you looked at the record, it was so sparse. I think at four of the clinics they had no evidence of any kind of disturbance. Then the video that they showed compared to the demonstrations that have occurred elsewhere, these were rather mild. It wasn’t necessary to have that 35-foot zone. And I think Massachusetts has gone back and changed it.

This would be the kind of statement we would find in a concurring opinion. We didn’t get that in court, but we find it after the fact.

RBG also offered these concurring thoughts on Noel Canning:

NLJ: The buffer-zone decision was unanimous in the judgment, but not in the opinion. Justice Antonin Scalia wrote a concurrence that was more of a dissent and he accused the court of “specious unanimity.” That case and the decision in the recess appointments clause challenge—also unanimous in the bottom-line judgment, but not in the opinion—gave rise to claims of “fauxnanimity.” Were they “specious” unanimous decisions?

GINSBURG: If the notion was the court was trying to appear unanimous when it wasn’t, that is not true. In Noel Canning [ the recess-appointments case], the court could not have disagreed more sharply on what is a recess that counts and could a vacancy occur before a recess. But when dealing with rules that Congress sets for the way it operates, the court has always been deferent to that. So I wouldn’t use the word ‘specious.’

I think some of the reports about Noel Canning, some of the headlines—’Court rejects Obama’s nominees—they missed what was really important about Noel Canning. The administration prevailed on the first two questions. It reminded me of when [news reports] decided Souter and Breyer were with the court in Bush v. Gore.

A Justice’s vote should speak for itself. I don’t like this ex post rationalization.

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Aug 22, 2014

Ginsburg on Federalism and Liberty in Windsor

Marcia Coyle also posed an excellent question for RBG about the role federalism plays in Windsor–basically none, she argues.

NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity.

I would take exception with RBG’s claim that Lawrence and Romer were not federalism cases. They were, in a very Kennedy-esque way. In Romer, Kennedy stressed how no other state had ever attempted such an unprecedented restriction on liberty. In Lawrence, Kennedy made a very big deal about how states in recent years had eliminated bans on sodomy–here states were conferring liberty on their people. He made a similar move in Windsor, citing the (few) states that had granted people the right to same-sex marriage, as evidence of more conferring of liberty. Here, he views states as the fount for liberty and freedom. It is in this way that federalism promotes freedom. The source of “equal dignity” is the states. This is a point that most people missed from Windsor. I know RBG didn’t buy that part of Windsor, but she did join it.

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Aug 22, 2014

Greenhouse: The “Failed Commerce Clause attack” On Obamacare. Failed?

I recently contributed to a symposium issue in the Illinois Law Review, led by Professor David Hyman, asking why law professors “misunderestimated” the challenge to Obamacare. One of the threads several of the authors hit on, was how many law professors–mostly on the left– were shocked and stunned that the constitutional challenge to Obamacare went anywhere. To this day, many insist that the commerce clause argument was a joke, and had no validity. Although, most would at least acknowledge, at least begrudgingly, that a majority of the Supreme Court accepted that argument.

Not Linda Greenhouse.

But stay with me, because this latest round, catapulted onto the Supreme Court’s docket earlier this month by the same forces that brought us the failed Commerce Clause attack two years ago, opens a window on raw judicial politics so extreme that the saga so far would be funny if the potential consequences weren’t so serious.

The Commerce Clause challenge didn’t fail. It succeeded. Five Justices accepted it. And, the government was absolutely incapable of articulating a limiting principle on the commerce clause (though as I discuss in my book, this was a deliberate choice on the part of the SG).

I would usually not pounce on an error like this, but there is a special history with Greenhouse and the challenge to the ACA, which I discuss in Unprecedented, and my Illinois article. Throughout the entire debate, Greenhouse expressed a never-ceasing sense of shock and awe that this challenge even went anywhere. She even charged her successor at the Times, Adam Liptak with promoting a “false equivalency,” in covering the case.

Here is a segment from my article:

Linda Greenhouse, the Pulitzer Prize-winning reporter who covered the Supreme Court for the Times from 1978 to 2007, was not pleased with the coverage of the case in the paper of record. Greenhouse, who now writes in the Times opinion section and lectures at Yale Law School, appeared on a panel titled “Journalism and the Constitution outside the Courts,” along with Emily Bazelon (Slate), Charlie Savage (the New York Times), and Adam Liptak (the New York Times). Liptak was Greenhouse’s successor for the Supreme Court beat at the Times. Greenhouse asserted that Liptak and others at the Times, by giving the challengers so much attention, created a “false equivalency.” She claimed that Liptak validated Barnett and his frivolous ideas. Many oth- er professors in attendance shared this concern.

Liptak emphatically rejected Greenhouse’s “false equivalence” al- legation. At the conference, he quipped, “Do I sense some hostility?” Later, Liptak would tell me that he was “taken aback by what I per- ceived to be harsh and heartfelt criticism from people I respect at my alma mater” (Yale Law School). He added that at the conference “[t]here was something like a consensus that the press in general and perhaps The New York Times in particular had fallen down on the job by unduly dig- nifying the arguments in support of the Commerce Clause challenge to the Affordable Care Act.” Liptak, however, felt that he had “pre- sent[ed] both sides of the argument.” Courts are a “poor place to make the ‘false equivalency’ criticism,” Liptak explained. “The critique is weaker still when the arguments on one side were made by a majority of the states and had divided the lower courts.”

Legal arguments, however strong the political backing, only go anywhere because the argument has the power of persuasion. The uphill climb in NFIB was strong, as the challengers had to thread a needle between existing commerce clause precedents. But they did it!

In comparison, Halbig is much easier–the text is there. Now, there are lots of things beyond the text (purpose, structure, effects, etc.), which I won’t get into here, but this is an argument that should, and has been taken seriously.

On the point of Halbig, Greenhouse makes another misstatement in her column. She writes that all three judges on the 4th Circuit agreed that the statute, on its face, treats state exchanges in the same fashion as federal exchanges.

Section 1321(c) provides that if a state fails to establish an exchange, the secretary of Health and Human Services shall “establish and operate such Exchange within the state and the Secretary shall take such actions as are necessary to implement such other requirements.” The words “such Exchange,” the government argues, mean that the federal government stands in the state’s shoes when it complies with this instruction; for these purposes, the federal government is the state.

That interpretation “makes sense,” all three members of a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., concluded in King v. Burwell, a decision that, by an amazing coincidence of timing, was issued the same day, July 22, as the contrary D.C. Circuit opinion. Those three judges, Roger L. Gregory, Stephanie D. Thacker and Andre M. Davis, examined the statute as a whole, in light of its purpose, and at the end of the day found the federal-state issue to be ambiguous. That’s all they needed to find for the government to win the case.

This isn’t  exactly right. Judges Gregory and Thacker found the statute ambiguous, and resolved the issue on Chevron Step 2, where the government gets the utmost deference. Only Judge Davis found the statute was unambiguous, and resolved it in favor of the government on Chevron Step 1. For that matter, all three judges in Halbig on the D.C. Circuit did not find the statute worked for the government on its face. Judge Edwards also turned to Chevron Step 2. In this post, I count the votes. 5 out of 6 judges agreed the statute is ambiguous, and does not clearly provide for the tax credits. Three judges had to rely on the uber-deferential Chevron Step 2 to resolve the issue.


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Aug 22, 2014

RBG On Hobby Lobby: “Access to Birth Control” v. “Cost-Free Access to Birth Control”

One of the largest obfuscations in the Hobby Lobby debate, which RBG has contributed to, is that the majority opinion rejected the idea that “access to Birth Control” is a compelling interest. This is technically correct, but let’s be precise what “access” means. We aren’t talking here about reversing Griswold, and placing “legal” blocks in the place of access to birth control or other fundamental rights. Or, to put in terms of Casey, there is no “undue burden.”

Justice Alito’s opinion in Hobby Lobby made this point clearly.

Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v.Connecticut, 381 U. S. 479, 485-486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13-354, at 50 (internal quotation marks omitted).

What was at issue is not “access” to birth control, but “cost-free access.” That is employees won’t have to pay additional fees for it.

We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb-1(b)(2).

There is a world of legal difference between “access,” which wasn’t at issue, and “cost-free access,” which the court addressed.  The former constitutes a legal block, and the former is a financial block. Now, I’m sure you can argue that making women pay for birth control is unfair, and fewer women will use it if it is expensive–there are countless findings in the law to this effect. That’s all correct.

But many opponents of Hobby Lobby are deliberately loose with their language, and attempt to give the impression that the Hobby Lobby majority thought that legal access to birth control was not a compelling interest. This is wrong, and a deliberate obfsucation of the facts.

Leading that obscurity is Justice Ginsburg, in her answer to Marcia Coyle’s direct question:

NLJ: In the Hobby Lobby decision, which was written by Justice Samuel Alito Jr., he analyzed whether, under the Religious Freedom Restoration Act, the government had a compelling interest in the contraceptive requirement and had used the least restrictive means to achieve it. But instead of finding or not finding a compelling interest, he simply said he would “assume” the government had such an interest. Should women take comfort in that assumption?

GINSBURG: They should not. They should be very worried about it because he should have said, “Of course there is a compelling interest in making sure women have access to birth control.” They should be very worried about that.

The use of the passive voice, “making sure women have access,” renders unclear who is preventing them from having it in the first place–the government, or the employer. The answer is neither. The case concerned “cost-free access.” I would generally be willing to give the Justice the benefit of the doubt, but her previous comments to Katie Couric make clear that she is feeding into the War on Women meme as the Notorious RBG, and displaying massive amounts of hubris, in her efforts to impact popular opinion outside the Court.

It is to be expected that pundits make such opaque generalizations, but I would expect more from a Justice

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Aug 22, 2014

RBG on Republicans and Campaign Finance Law

Kudos to Marica Coyle, who conducted a brilliant interview with Justice Ginsburg. The mark of a great interview of a Justice is learning new stuff. And, I learned a lot of new stuff. Alas, what I learned does not help my of-late decreasing opinion of Justice Ginsburg. I recently noted that Justice Stevens has been quite quiet since his book launch faded, so RBG seems to have taken up the mantle. Many of her comments border on inappropriate, as they can be seen as direct attacks on her colleagues. Some may think this is healthy, and the Justices should be open about these types of internal deliberations. I don’t. It will take me a few posts to go through all of her comments. I’ll go in sequential order.

First, here is a Q&A concerning the Court’s reputation, and campaign finance law:

NLJ: You have said that you and your colleagues are most concerned that the Supreme Court not be viewed as a political institution. Recent polls show declining disregard for the high court and strong feelings that the justices apply their political beliefs, not the law, to the cases before them. What do you think is behind those reactions?

GINSBURG: I think it’s the spillover effect from the dismay about our dysfunctional Congress. Whatever the polls say about the court, we stand much, much higher than either of the other two branches. I think people are disillusioned with our government’s inability to work and that spills over to the court because we are part of the government.

One of the problems is that redistricting has led to safe seats for one party or the other. Still I think the biggest mistake this court made is in campaign finance, which Justice [Sandra Day] O’Connor could have saved us from. She left. Justices O’Connor, [John Paul] Stevens and [David] Souter (who supported campaign finance regulations) were Republican voters from the time they could vote and came from families that were always Republican. It should be increasingly clear how [money] is corrupting our system, and it is spreading in states that elect their judges. 

I think the first part of her answer is unobjectionable–though a good question is whether the Court should take notice of that dysfunction when interpreting the byproduct of a gridlocked, intractable Congress.

The second paragraph potentially worries me. Justice O’Connor has said as much, that she would not have voted with the Citizens United majority. But what’s the salience that O’Connor, Stevens, and Souter “were Republican voters.” Is she trying to say this is is a bipartisan issue? In truth, Souter and Stevens were consistently liberal voters, so at this point, their Republican voting status is almost immaterial (they claim the party left them–whatever). But, when read in context with the next sentence, I get worried. Is she insinuating in any way a link between Republicans and money corrupting the system. There is an abrupt jump between saying that those Justices were former Republicans, and then saying that money is corrupting the system. I can’t help but think, in her mind at least, there is some implicit connection.

Also, a point that may have been made elsewhere, recently dawned on me. The Justice sit in review of judgments from state judges, who apparently are being “corrupt[ed]” by money. Does RBG realize she is targeting the integrity of the very state judges she sits in review of? I think it is probably inappropriate for Justice O’Connor to do all the things she has done (robocalls and all), but for a sitting Justice, who sits in review of state judges, to say these things, is very disquieting. What does RBG think when she gets a cert petition from Texas, where all Justices sit for election? Is there an implicit bias that these judgments, perhaps with a corporate defendant, were the product of “corruption” from money?

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Aug 22, 2014

“Report from Nuremberg: The International War Crimes Trial”

I recently finished listening to “Report from Nuremberg: The International War Crimes Trial.” This audiobook re-enacts the transcribed radio broadcasts on the Armed Forces Network during the Nuremberg Trials in 1945-46. Rather than reading a history of Nuremberg, this recording recreates the contemporaneous daily broadcasts from the Palace of Justice in Nuremberg.

There are some fascinating insights into how the trial proceeded, how the Nazis behaved out of court, and what the service members thought about the Nazis (they should be taken out back and shot).

As a special treat, the host does an interview with “Mr. Justice Jackson.” Jackson does a wonderful job explaining why the rule of law demands a trial for these war criminals, and why this should be a sterling example to the world of how democracy works. Although, the host of the broadcast was not a fan of Justice Jackson’s cross-examination of Hermann Goring, the leader of the Nazi Party. He later said that Jackson lacked enough knowledge about European history to corner Goring. The British prosecutor apparently did much better.

It’s about 6 hours long, and is well worth a listen.

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Aug 21, 2014

GAO: Bergdahl Swap Violated “Clear and Unambiguous Law” and violated “Antideficiency Act”

The GAO has released a new report find that the DOD’s decision to release the detainees from Guantanamo without complying with the statute violated a “clear and unambiguous law” and violated the “Antideficiency Act.”

In our view, the meaning of section 8111 of the Department of Defense Appropriations Act, 2014, is clear and unambiguous. Section 8111 prohibits the use of “funds appropriated or otherwise made available” in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity “except in accordance with section 1035 of the [FY 2014 NDAA].” Pub. L. No. 113‑76, § 8011. Section 1035 of the FY 2014 NDAA, in turn, requires the Secretary of Defense to notify certain congressional committees at least 30 days in advance of such a transfer, among other things. Pub. L. No. 113‑66, § 1035. Because DOD did not provide written notice to the relevant congressional committees until May 31, 2014, the same day as the transfer, DOD violated section 8111. DOD July 31 E-mail.

But in any event, the President did not rely on his Article II powers. The administration claimed that Congress would not have wanted it to apply this way under these “circumstances.”

Initially, Secretary of Defense Chuck Hagel justified the release on the President’s inherent Article II powers, as a rationale for his failure to comply with the law: “we believe that the president of the United States is commander in chief, [and] has the power and authority to make the decision that he did under Article II of the Constitution.” White House National Security Adviser Susan Rice—a Sunday-morning show stalwart—similarly alluded to the President’s inherent powers during an interview on This Week, “We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don’t think anybody would have forgiven the United States government.”

Shortly thereafter, the Administration attempted to walk back that position, and the National Security Council released a more refined statement, not based on inherent powers: the “Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances.” Further, “Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.” The White House Press Secretary likewise explained, “The administration determined that given the unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement of the NDAA, because of the circumstances.”

This argument borders on absurd because virtually all members Congress–Republican and Democrat–specifically opposed this very trade. As I explain in Gridlock and Executive Power, “here lies the fatal flaw of the “congressional intransigence” theory of Article II—it manifests delusions of executive grandeur and machinations of congressional support, when neither exists.”

Yet, the argument provided by the DOD seems to offer a slightly different answer, that seems closer to inherent Article II powers:

We asked DOD for its legal views on the application of section 8111 to the transfer at issue in this opinion. DOD responded that section 8111 prohibits the use of appropriations “only if the transfer is unlawful under section 1035” and that the “transfer was lawful under section 1035, regardless of whether the Administration complied with any notice requirement imposed by section 1035(d).” DOD July 31 E‑mail, Attachment 1, at 1–2. DOD asserts that a transfer is lawful if the Secretary of Defense makes the requisite determinations under section 1035, and that “section 1035 does not impose any other preconditions on the Secretary’s authority under section 1035(b) to make transfers.” Id., Attachment 1, at 1. While DOD acknowledged the section 1035(d) 30-day advance notice requirement, DOD states that section 1035 does not provide that “a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.” Id.

GAO flatly rejects this obfuscation:

In our view, DOD has dismissed the significance of the express language enacted in section 8111. Section 8111 prohibits DOD from using appropriated funds to carry out a transfer “except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.” Pub. L. No. 113-76, § 8111. Section 8111 makes no distinction regarding the weight of various subsections under section 1035. The notification requirement in section 1035(d) thus stands on equal footing with the determination requirements in section 1035(a) or section 1035(b). Section 8111 means, then, that DOD must comply with all provisions in section 1035, including the notification requirement, before obligating appropriated funds to carry out a transfer. To read section 8111 otherwise would render the notification requirement meaningless.

DOD also falls back on Article II, but not the Commander in Chief power.

Alternatively, DOD asserts that section 8111 is unconstitutional as applied to this transfer.[5] DOD July 31 E-mail, Attachment 1, at 2–3. DOD states that providing notice “would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members.” Id., Attachment 1, at 2. DOD asserts that these provisions violate the “constitutionally-mandated separation of powers.” Id., Attachment 1, at 3. According to DOD, section 8111 improperly “attempt[s] to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose indirectly.” Id.

This is similar to the arguments justified for the Iraq strikes.

The GAO report offers no thoughts on the constitutional argument.


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Aug 21, 2014

Administrative Office: Courts Lacks Authority To Assign Panel Attorneys to Clemency Project

The Administrative Office of the United States Courts–whether speaking for all judges, or not–has determined that the Criminal Justice Act does not provide statutory authority for the courts to appoint federal public defenders or CJA panel attorneys to assist with seeking clemency.  You can find a memorandum from Judge Bates, along with a legal opinion here.

Here is an overview of the analysis:

On April 13, 2014, the Deputy Attorney General announced a new clemency initiative (“Clemency Project 2014”) for certain federal inmates currently serving lengthy sentences. Clemency is a function and responsibility solely of the Executive Branch, but this initiative may affect the courts, the United States probation offices, and the federal defenders. The Department of Justice (DOJ) has requested that federal defenders be detailed to the Office of the Pardon Attorney to assist in screening clemency applications, and some inmates have requested assistance of counsel. Questions have been raised, however, about the authority to appoint federal defenders or panel attorneys to represent clemency applicants under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

In essence, the General Counsel of the AO has concluded that there is no authority under the CJA or any other provision of law for courts to appoint federal defenders or CJA panel attorneys to represent non-capital clemency applicants under the new Executive Branch initiative. In light of that conclusion, we must advise that CJA panel attorneys are not authorized to be paid for non-capital clemency representations. The General Counsel did conclude, however, that agreements may be entered with DOJ to detail federal defenders to the Office of the Pardon Attorney to assist with screening clemency applications, so long as it is on a fully-reimbursed basis.

The General Counsel’s opinion further explains that: “the lack of court authority to appoint the FPDO to represent a clemency applicant would not preclude the FPDO from screening its client files to identify individuals who may satisfy the criteria established under this initiative or from reviewing files to assist another attorney representing a clemency applicant.” Involvement by federal defenders, to the extent consistent with the law and the priorities of each office, may have practical benefits to the courts, probation offices, and clemency applicants. Defenders customarily assist clients, even after sentencing, with inquiries related to incarceration, and may be well-equipped to review presentence reports and other information to determine whether applicants meet the criteria established by the DOJ for clemency. The opinion also acknowledges that “courts have discretionary authority to appoint FPDOs to assist in various administrative tasks for the general benefit of their office, the courts, or the judiciary,” but concludes that there is no authority to appoint federal defenders or panel attorneys to represent individual non-capital clemency applicants.

Here is the key portion of the analysis:

Since the Deputy Attorney General’s address to the New York State Bar Association and the formation of Clemency Project 2014, several U.S. district courts have issued orders (Standing, Administrative, and case specific) pursuant to 18 U.S.C. § 3006A(a)(1) and (c) authorizing FPDOs to represent individuals previously determined to be entitled to appointed counsel in seeking clemency under this initiative.9 Some of these orders cite § 3006A(a)(1) and (c) as authority to appoint counsel “in the interest of justice” and/or as “ancillary” matters, respectively, under the CJA. Others cite the CJA more generally, and still others cite no authority at all.

As discussed above, the power to grant clemency under federal law is a purely executive function; only the President has that power. See Harbison v. Bell, 556 U.S. 180, 186-87 (2009). Moreover, the exercise of that power is not adversarial in nature and does not involve a proceeding at all, judicial or otherwise. Rather, clemency “is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 412 (1993). There is no Sixth Amendment right to counsel for purposes of seeking executive clemency and no statutory right, except in capital cases. Our review leads to the conclusion that there is no authority under the CJA or other law to appoint counsel in non-capital clemency proceedings.

Congress has explicitly authorized CJA counsel appointed in capital cases to file clemency petitions on behalf of financially-eligible defendants. “Each attorney so appointed shall represent the defendant through every subsequent stage of available judicial proceedings . . . , and all available post-conviction process, together with stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” 10 18 U.S.C. § 3599(e). But Congress has not seen fit to provide this authorization in non-capital CJA appointments, whether in the interest of justice or otherwise, although it clearly could have done so if it had been so inclined. See 18 U.S.C. § 3006A(a). “Congress’ decision to furnish counsel for clemency proceedings [under § 3599(e)] demonstrates that it, too, recognized the importance of such process to death-sentenced prisoners[.]” Harbison v. Bell, 556 U.S. at 193.

Though this “memorandum” seems awfully close to an advisory opinion. The Judge seems to endorse a legal opinion finding the courts lacks statutory authority to take certain action. But, there may be no other way for this issue to be resolved, as this is a case for judges alone to consider in the administration of their courts.


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Aug 21, 2014

Ashby High Rise Judgment Appealed

Earlier this month, the developers behind the Ashby High Rise appealed the trial court’s final judgment. Here is the both parties notice of appeal. We should have arguments at some point this fall. Stay tuned.

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Aug 21, 2014

Government by Blog Post: Administration Extends No Child Left Behind Exemptions

Seeing that No Child Left Behind doesn’t fit with the Administration’s policies, the Department of Education has extended blanket waivers to states, exempting them from conditions of the law.

Secretary of Education Arne Duncan announced on Thursday that states could delay the use of test results in teacher-performance ratings by another year, an acknowledgment, in effect, of the enormous pressures mounting on the nation’s teachers because of new academic standards and more rigorous standardized testing.

Sounding like some of his fiercest critics, Mr. Duncan wrote in a blog post, “I believe testing issues are sucking the oxygen out of the room in a lot of schools,” and said that teachers needed time to adapt to new standards and tests that emphasize more than simply filling in bubbled answers to multiple-choice questions.

Over the past four years, close to 40 states have adopted laws that tie teacher evaluations in part to the performance of their students on standardized tests. Many districts have said they will use these performance reviews to decide how teachers are granted tenure, promoted or fired. These laws were adopted in response to conditions set by the Department of Education in the waivers it granted from the No Child Left Behind law that governs what states must do to receive federal education dollars. The test-based teacher evaluations were also included as conditions of Race to the Top grants that have been given by the Obama administration.

Last year Mr. Duncan said states could delay using teacher evaluations to make high-stakes personnel decisions. Thursday’s announcement allows states to delay using test results at all in performance reviews.

And, of course, this new law by the Administration was announced in a blog post by the Secretary of the Education (the Education Blog is much nicer than the HHS blog)!

That’s why we will be taking action in the coming weeks that give states more flexibility in key areas that teachers have said are causing worry.

States will have the opportunity to request a delay in when test results matter for teacher evaluation during this transition. As we always have, we’ll work with them in a spirit of flexibility to develop a plan that works, but typically I’d expect this to mean that states that request this delay will push back by one year (to 2015-16) the time when student growth measures based on new state assessments become part of their evaluation systems – and we will work with states seeking other areas of flexibility as well. We want to make sure that they are still sharing growth data with their teachers, and still moving forward on the other critical pieces of evaluation systems that provide useful feedback to educators.

I haven’t found the regulation yet, but it doesn’t matter, because there is a blog post. Because won’t someone please think of the children!

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Aug 21, 2014

Gridlock and Judicial Power

I have written about about the relationship between gridlock and executive power. (My article on that topic is currently running the Law Review gauntlet). The next chapter in this project focuses on the relationship between gridlock and judicial power.

How should courts act when they know that Congress wasn’t functioning as they may have once assumed? To use an example, should the Court take cognizance of the absolute mess that was the enactment of the ACA super statute. To use Halbig as an example, in a normal-functioning legislative process, if the “established by the states” language was an error (I’m not stating here whether it was or not), a rationally well-functioning congress would have fixed that language during committee and reconciliation work. NONE of that happened with the ACA, because of the election of Scott Brown. The Democrats lost their filibuster-proof majority, and they had to pass the draft bill that cleared the Senate on December 4, 2009.  Even though the bill was passed through the reconciliation process, there was no meaningful reconciliation that occurred. So we are stuck with an incomplete, draft version of the bill.

What should the court do, if anything, with that history. Should the court simply disregard it, and say that the bill passed the democratic process, and we shouldn’t care about what came before? Certainly this impacts the analysis whether the statute is ambiguous or not on its face. Should the court consider it in any way, perhaps with respect to the cannons of statutory interpretation–call it the incomplete cannon. Congress was forced to pass an incomplete version of the bill due to political gridlock, and we should treat it as an incomplete bill. I’m not sure which way this one would cut (I welcome your thoughts).

One answer would say, well, since Congress did a rush job, the Court should look to the bill’s overall purpose to fill in any gaps in the statute, and read the statute how Congress would have. (This argument is totally apart from Chevron Step 2, I’m still at Chevron Step 1 for ambiguity). Another answer would be say, well, Congress did a rush job, they probably had no cohesive thought on this particular provision (the legislative history is silent on this section), so let’s stick with the only thing that made it through the legislative gridlock and the President’s signature–the text. In other words, a certain realism about the impact of gridlock could great affect how judges read statutes enacted under these conditions.

A corollary of gridlock and judicial power, is when judges known, and take advantage of the fact that Congress isn’t functional after remand. Richard Re has written about the “doctrine of one last chance.” For example, in NAMUDNO, eight Justices on the Court sent Congress a warning–fix the Voting Rights Act or we will invalidate it. A few years later in Shelby County, Congress invalidated the coverage maps, but left the rest of the law intact, sending Congress another shot–fix the coverage map. Of course, in both cases, the Justices (reasonably) should have known there was absolutely no chance Congress would do what it wanted. The VRA re-authorization passed by a huge bipartisan majority. And there was no chance Congress would actually be able to pass new maps–the lack of progress in the last year has been evidence of the fact.

Here, the Justices seem to be relying on gridlock as a prop for judicial modesty. They can act as if the democratic process will work it out. The Justices aren’t making the Voting Rights Act unworkable. They are simply letting Congress fix it–even though they know it won’t happen. Passing the buck to a gridlocked Congress has a similar effect as the Court striking down the law itself. But, here the Court doesn’t need to assume the responsibility of invalidating the law.

In the first case, the Court can either ignore gridlock, and pretend the legislative process functioned normally, and apply all of the normal cannons of statutory interpretation. Or, they could take cognizance of the fact that none of the rules apply to a dysfunctional Congress, and go from there.

In the second case, the Court seems to be knowingly cognizant of the gridlock, but takes advantage of it by punting to a Congress they know won’t return the ball. This promotes a faux judicial modesty that seems to be a hallmark of the Roberts Court so far.

Another implication of gridlock and the judicial power, is that when laws are passed outside the normal legislative process–such as when the President takes unilateral executive action because Congress won’t enact his agenda–parties are forced to turn to litigation. As the New York Times recently explained, the normal rent-seeking and lobbying process is disturbed when the President–not Congress-decides which interests it will consider. In such cases, litigation very well may be the first opportunity for the minority party to have a say in a new policy. So here, the judicial power serves as a cog of the democratic policy to unlock gridlock.

I’ll develop these thoughts more.

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Aug 21, 2014

Limiting Executive Overreach Through The Senate’s Power of the Purse

One of the arguments offered in favor of the House’s lawsuit against the Obama Administration’s executive overreach, is that it is without any political means to stop the President. I think this argument has some salience with respect to the President’s willingness to selectively decline to enforce the law, but the Republican’s proposed strategy, if the GOP takes the Senate, offers an alternate approach:

“We’re going to pass spending bills, and they’re going to have a lot of restrictions on the activities of the bureaucracy,” McConnell said in an interview aboard his campaign bus traveling through Western Kentucky coal country. “That’s something he won’t like, but that will be done. I guarantee it.”

In a lengthy interview with Politico, Senate Minority Leader Mitch McConnell suggested that the Senate will attach riders to spending bills to cabin the Executive’s activities. For example, limiting regulations that the EPA can promulgate:

A “good example,” McConnell said, is adding restrictions to regulations from the Environmental Protection Agency. Adding riders to spending bills would change the “behavior of the bureaucracy, which I think has been the single biggest reason this recovery has been so tepid,” he said.

“He could,” McConnell said calmly when asked if such a tactic would prompt Obama to veto must-pass appropriations bills. “Yeah, he could.”

It’s unclear if McConnell could pass bigger limitations–such as restricting the President’s ability to rewrite Obamacare. The Congress could even pass a law that would *force* the President to implement the employer’s mandate, which is the gravaman of the House lawsuit.

Such an approach casts some doubt on the House’s litigation arguments.

This hardball would force the President to veto the bill, which may result in a shutdown.

But asked about the potential that his approach could spark another shutdown, McConnell said it would be up to the president to decide whether to veto spending bills that would keep the government open.

Obama “needs to be challenged, and the best way to do that is through the funding process,” McConnell said. “He would have to make a decision on a given bill, whether there’s more in it that he likes than dislikes.”

This would be a politically risky move, but a political move nonetheless. Of course, even if the President signs the law, he can just issue a signing statement, saying he won’t follow that part of the law.

McConnell pours a bucket of cold water on ay thoughts of repealing Obamacare through the reconciliation process, something that he considered in 2012.

“That’s how we got Obamacare; we’ll see if we can undo any of it that way,” Paul said in an interview. “It makes more sense to try to do it with 60, but I think you do what you have to do.”

But McConnell was coy on whether he’d pursue this tactic. And even if he tried to gut Obamacare, he knows full well he’d lack the support to override a presidential veto.

“We’ll see,” McConnell said when asked about reconciliation.

Stay tuned.


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Aug 20, 2014

Tom Goldstein Files Amicus Brief On Behalf of His Firm In Support of Neither Party

Tony Mauro reports that Tom Goldstein filed a brief on behalf of his firm, Goldstein & Russell, in support of neither party, supporting certiorari. There’s no party. Just Tom.

A little-noticed brief in a case before the U.S. Supreme Court this fall may launch a new genre of friend-of-the-court filings: written by a law firm on behalf of no client—not even law professors—and in support of neither side.

Or it might flop, its author Thomas Goldstein of Goldstein Russell readily acknowledges. “I’ve never heard of it being done before—the court is used to lawyers having clients,” he said in an interview. “But that has never deterred me from doing something before.”

Indeed Goldstein has shaken up the staid Supreme Court bar more than once—cold-calling losing lawyers in appeals court cases to drum up business in the 1990s, launching Supreme Court clinics at law schools, and in 2002, creating SCOTUSblog, a resource for high court practitioners and law junkies.

Goldstein says his brief in M&G Polymers USA v. Tackett may be the leading edge of an effort by the bar to assist the Supreme Court in new ways, not necessarily as advocates for a particular party.

Remarkably, Tom notes that the amici filing on behalf of clients are not “true amici,” but he is!

“The court is likely to be very concerned about coming up with a workable rule for everyone, not just the parties before them,” Goldstein said. As for amici, sometimes “they are not true amici. They have an ax to grind, a dog in the fight.” In his brief, Goldstein told the justices, “This is the rare true ‘amicus’ brief.”

And, Tom fancies that in certain cases, the Court will call for the views of an expert, similar to the CVSG when the United States has an interest. CVTG perhaps–Call for the views of Tom Goldstein.

Looking ahead, Goldstein said he hopes his brief could lead to something akin to the court’s so-called “CVSG” relationship with the U.S. solicitor general.

In cases where the federal government is not a party but might have some relevant things to say, the court often calls for the views of the solicitor general—CVSG for short—in the form of briefs that detail federal practices or other relevant information.
Goldstein posited that in select cases, the court could ask disinterested lawyers—or perhaps an organized Supreme Court bar group—to provide similar briefs when the government is not involved.

Here is the “Interest of the Amicus” statement from the brief:

This is the rare true “amicus” brief. It is respectfully submitted as a friend of the Court, with no agenda or desire to direct the outcome of the case. The only purpose of the brief is to provide the Court with factual information that may be useful in guiding its decision. Amicus is a law firm that practices before the Court. The firm has no interest in the outcome of the case. Nor is it aware that any of its clients has an interest in the outcome of the case. The genesis of the brief is a desire for members of the bar to provide the Court with assistance in deciding cases correctly. In particular, while many cases before the Court on the merits involve broad and general questions of law, or generate large numbers of thorough amicus submissions, others do not. A material number of cases instead involve important questions that arise in technical fields, yet generate few amicus briefs that elaborate on the legal issue and the factual context in which that issue regularly arises. In those cases, the bar has the ability to use its resources to provide the Court with that information. This appears to be such a case.

Tom explains that he was waiting for a case like this for years:

Goldstein, who said he has been looking for a case like M&G for years, thought it would be helpful to write an amicus brief that would give the court data that parties or other amici might not provide. Namely, a survey of collective bargaining agreements that tallies how many contain different provisions that lower courts have looked for in determining whether retiree benefits vest.
Even though he had no client in the case, Goldstein surveyed 100 collective bargaining agreements and told the court the results in his brief. As court rules provide, he sought and got permission from the parties to file the brief, but has received no feedback from them.

Unsurprisingly, Tony was unable to find any lawyer willing to comment on this brief.

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Aug 20, 2014

SCOTUS: Get the Picture Judges?! Stay Same-Sex Marriage Rulings.

For some time now, I have been blogging about the rule of law, as applied to the same-sex marriage cases. My discussion has nothing to do with the merits of the case, or how the case will turn out at the Supreme Court.

Rather, my focus has been on how the lower courts have behaved in bizarre ways with respect to fairly routine procedural matters. Twice the Supreme Court granted emergency stays from Utah, and twice those appeals were granted. Some courts, such as the 9th Circuit, took note of this action, and stayed its own ruling. Other courts–I’m looking at you 4th Circuit–without any analysis, declined to stay their ruling.

Like in Utah, the clerks in Virginia were forced to file emergency appeals to stop the mandate from going into effect. And once again, the unanimous (See update) Supreme Court has dutifully granted the stay.

All 9 Justices agreed to this order–including 4 Justices who are almost a lock to uphold that judgment. There has not even been a dissent from the liberal darling, the Notorious RBG, who has officiated at several same-sex weddings.

Granting stays is not a liberal or conservative issue. It is a procedural issue–maintain the status quo so the case can be fully appealed. This is especially the case where the Court has *twice* weighed in on this issue, and *twice* granted stays. There should be no surprise about this. The lesson was clear.

Shame on 4th Circuit Judges Floyd and Gregory for refusing to stay the rulings, without a single sentence of analysis, in the face of Supreme Court precedent to the contrary.

Update: As a few people pointed out on Twitter, technically the grant of the stay is not unanimous. It only means that no Justices were on record as offering a dissent. Justice Ginsburg made this point recently in an interview–perhaps with these stays, and Little Sisters of the Poor on her mind.

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. ‘‘When a stay is denied, it doesn’t mean we are in fact unanimous,’’ she said.

In any event, I’m not persuaded. If a Justice disagrees with something, and decides not to dissent on record, then I will deem her in agreement. This business of joining an order you don’t agree with is a bit bizarre. Perhaps, a Justice doesn’t agree with it on the merits, but won’t dissent in order to maintain relations on the Court? If so, then the Justices agrees with granting the order. There isn’t a way to dissent quietly. Dissenting means you dissent. There are often dissents to denials of death penalty stays. The Justices know how to issue those.

We have courts of record, not courts of internal opinion. This is why I had a really tough time getting Justice Sotomayor’s outrage in Wheaton College, when she also joined the Little Sisters of the Poor Order. Perhaps they didn’t really accept the first order–but they joined it.

So I’ll caveat the phrase “unanimous,” but I will treat all 9 Justices acting in agreement.

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Aug 20, 2014

Constitutional Faces: Employment Division v. Al Smith

al-smithThe ACLU has the backstory of the lead plaintiff from Employment Division v. Smith, which wrought RFRA.

Al Smith was in his mid 50s-a recovering alcoholic who had picked himself up from the street, rebuilt his life, and made a career of helping others do the same-when he began reclaiming his Native American heritage. After almost half a lifetime without moorings, the ancient traditions that had been lost to him as a child became a growing source of spiritual comfort.

“I was spiritually unbalanced, I was starving. Now my spirit’s so happy. I’m on the high road, back to the Creator from whence I came.”

When he was seven, Smith was taken from the Klamath reservation by the federal Indian Agency and enrolled, like thousands of other Native American children, in a succession of boarding schools where, instead of big skies and open vistas, he found high fences, concrete yards and indoctrination into the white man’s culture. Memories of his own people’s ways were blotted out.

“They took us off, took me from my mother and my grandmother, and we were forbidden to speak our native tongue. They took away my freedom, and I couldn’t understand why I was locked up like that. We weren’t recognized as people. I was 55 or 56 years old before I attended my first Native American ceremony. I don’t speak Klamath. I know no Klamath songs.”

In 1983, Smith was fired from a job he held in Roseburg as a drug and alcohol counselor because he participated in the sacramental use of peyote, a controlled substance that, like the wine of Christian communions, is at the core of the centuries-old Native American religious ceremony in which Smith took part. Smith was denied unemployment benefits by the State of Oregon on grounds that his firing was for just cause. The confrontation inflamed the scars of the past.

“Is this going to continue on? Or am I going to put a stop to it, finally, and say: ‘You can’t tell me that I can’t go to religious ceremonies.”

Smith stood up for his rights-represented by Oregon Legal Services, with the aid of the ACLU. More than six years of litigation followed, culminating in a 1990 U.S. Supreme Court decision that affirmed the state’s denial of Smith’s unemployment claims.

“People have individual rights and they have be aware of that, to have the energy, the courage to speak out and question. Otherwise, we’ll fall into being just like a herd.”

Smith had only lost the battle, not the war. The Courts decision in Employment Division of Oregon v. Smith galvanized religious leaders of all faiths because it brazenly swept aside the long-held doctrine that government must show a “ compelling state interest” before infringing on religious practices. Oregon has since joined 23 other states and the federal government in declaring the sacramental use of peyote in Native American ceremonies legal. And President Clinton in 1993 signed into the law the restoring the “compelling interest” doctrine.

“I’m seeing to it that my little children – my daughter is twelve and my son is seven – have a choice about what path to follow. I didn’t have a choice. But they know the ceremonies. They know what a sweatlodge is. They’ve participated in a sundance. They know about the drum. So the culture is not lost.”

Oh, those were the days when the ACLU supported RFRA.

And here is a photograph of the seal of the Employment Division of Oregon.



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