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Transcript of Justice Stevens’s Senate Testimony

April 30th, 2014

Ron Collins has posted the transcript of Justice Stevens’s testimony. I’d like to focus on his analysis of Buckley v. Valeo being in error, and his proposal to amend the Constitution:

Fifth, the central error in the Court’s campaign finance jurisprudence is the holding in the 1976 case of Buckley v. Valeo [442 U.S. 1 (1976)] that denies Congress the power to impose limitations on campaign expenditures. My friend Justice Byron White was the only member of the Court to dissent from that holding. As an athlete and as a participant in Jack Kennedy’s campaign for the presidency, he was familiar with the importance of rules requiring a level playing field. I did not arrive at the Court in time to participate in the decision of the Buckley case, but I have always thought that Byron got it right. After the decision was announced, Judge Skelly Wright, who was one of the federal judiciary’s most ardent supporters of a broad interpretation of the First Amendment, characterized its ruling on campaign expenditures as “tragically misguided.”[J. Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?,” 82 Col. L. Rev. 609, 609 (1982).]Because that erroneous holding has been consistently followed ever since 1976, we need an amendment to the Constitution to correct that fundamental error. I favor the adoption of this simple amendment:

Neither the First Amendment nor any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

I think it wise to include the word “reasonable” to insure that legislatures do not prescribe limits that are so low that incumbents have an unfair advantage or that interfere with the freedom of the press. I have confidence that my former colleagues would not use that word to justify a continuation of the practice of treating any limitation as unreasonable.

I frankly don’t know what to make of the last sentence, emphasis added. He is assuring the Senate, and the American people, that if his Amendment is adopted, that his colleagues–the other Justices–will interpret it in a certain way consistent with his preferences. Most simply, the word “reasonable” is one of the most hotly contested terms of art we have in the law. Think of the “unreasonable” clause in the Fourth Amendment. How straightforward is that?

On another level, how brazen is he to prejudge how his colleagues will judge anything. Recall, he was in the dissent in Citizens United. More importantly, I suspect his colleagues–especially those inclined to disagree–don’t give a damn what he has to say. He has been criticizing them with impunity for the past three years.

But, on a deeper level, a sitting Justice is offering a construction of how his Amendment will be interpreted by the Justices. This is an advisory opinion. Granted, there is a 0% chance this amendment will go anywhere, and there is a 0% chance Stevens would ever hear a case involving it because he doesn’t ride circuit. Which makes it all the more feasible for him to simply step down.

Justice Stevens should retire, for real. If he wants to make comments like this, do so as a private citizen. He will keep his guaranteed salary for life, even if he hears no cases.

There’s no reason to even flirt with the line between proper and improper judicial ethics like this.

The Code of Conduct and Justice Stevens’s Testimony to the Senate

April 30th, 2014

Ed Whelan offers a detailed breakdown of the Code of Conduct for Judges, and how its canons and advisory opinions suggest that Justice Stevens may have acted unethically by testifying before Congress. In particular, he focuses on Advisory Opinion No. 50 and No. 90 (which I reproduce at the end of this post). 

I have a few preliminary observations about these canons and commentaries.

First, the canons do distinguish between a judge making comments about the law in the context of lectures, speeches, and book, as opposed to before a legislative committee. The appearance of a judge making substantive legal recommendations in a book, and to the very legislators who can change the law, seems to take on a different dynamic.

Second, the canons look favorably upon judges appearing before legislative bodies for “matters relating to court personnel, budget, equipment, housing, and procedures.” That seems to make a lot of sense. Every year, two Justices (usually Justice Breyer) cross First Street to offer testimony, and answer questions about the Court’s budget. Though, the Justices always go out of their way to avoid answering questions about any legal issue.

Third, the “propriety” of “a judge appearing on behalf of, or against, particular proposed legislation that relates to subject matter other than the administration of justice ” is “less clear.” This reflects my sentiment that testifying on issue of statutory, and indeed constitutional law, can create the appearance of impropriety. The commentary notes that “Advocacy for or against legislation aimed at vital political issues or policy may well raise questions of propriety despite the fact that the judge, too, is a citizen and may be affected by the legislation.” This note seems to suggest that they anticipate judges appearing before a legislative body to speak as a private citizen in limited contexts.

Fourth, the obvious problem of a judge talking about pending legislation is that it may cause recusals. “Such legislation also may spawn litigation likely to come before the judge.” Perversely, this is not really a problem for Justice Stevens, who though is eligible, and perhaps obligated to hear cases on the Circuit, has not heard any, and is not likely to start.

Fifth, like most canons, ultimately the ethical choices will be up to the judge:

There will, of course, be subject matter that falls close to the line between the permissible and impermissible categories for consultation with public bodies. The judge then must use his or her best judgment, having in mind the basic purpose and intent of the canon, and the likelihood that litigation relating to the subject matter will come before the judge.

Sixth, the canons attempt to place some limit on when a judge can testify about “matters not concerning judicial administration” — “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.” The canons expound on this phrase in Advisory Opinion 90:

We have accordingly advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual.

From this, Ed Whelan concludes:

I don’t see how Stevens’s role in deciding cases involving campaign finance should be thought to give him “special expertise in that area” any more, say, that Justice Scalia’s role in deciding cases involving abortion gives him special expertise in that area. Anyone who would be appalled if Scalia were to testify before Congress on, say, a proposed Human Life Amendment ought equally to be appalled by Stevens’s testimony. There is nothing about either topic that would “reasonably … be considered to merit the attention and comment of a judge as a judge.”

I think it’s an open question if Stevens’s has “special expertise in th[e] area” of drafting statutes and amending the Constitution. It is certainly true that he has special expertise in how the First Amendment should be interpreted based on his three decades of experience. But the focus of the Rule Committee hearing, and of his testimony, was how the law should be changed–both through statutory change and constitutional amendments–not what the law is. For example, Stevens made some comment that members of Congress would be “happier” if they didn’t have to spend so much time on fundraising. Says who?

Further, his testimony touched on issues that could very well come before the Court (or a Circuit Court where he could sit), in the event that the changes he proposes are enacted, and the litigated. In other words, if the Congress listens to him (which they won’t), the very statutes or rules they enact on his advice will almost certainly go before the Supreme Court. That a Justice should bear in mind “likelihood that litigation relating to the subject matter will come before the judge” should be enough to resolve the matter. Stevens also said that he was “confident” that his colleagues would interpret the word “reasonable” in his proposed amendment in a certain way. This glib comment, in my mind, comes awfully close to prejudging a case, and giving an advisory opinion. (Again, not that there’s any chance he would hear it on a Circuit Court).

The subject of Opinion 90 requires that the “subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual.” I am not entirely clear what “judge as a judge” means. At the least, it should tell me that judges should testify, if at all, in the role of judges on matters that affect broader issues of law and justice. Not based on personal gripes a Judge may hold against the way the law stands. And, more importantly, not by asking the Congress to change the very laws that judge will (in theory at least) have to interpret.

Relatedly, I am reminded of an address Justice Alito gave in 2010, titled “Let Judges be Judges.”

The assault on the traditional idea of the role of judges began more than 100 years ago. But ordinary people stubbornly hold on to some old-fashioned beliefs, one of which is the idea that the Constitution means something. Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. Asked whether a judge should apply the law as written or do what the judge thinks is fair and just, two-thirds of those polled said: apply the law as written. That’s what we mean when we say that we have the rule of law and not the rule of men.
We need to preserve that idea. Judges are not scientists, and they should not be constitutional rubber stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution. And they should not aim to be theorists or crowd pleasers. Let judges be judges. For if they are not, our legal system as we know it will fade away.

I’ll stick with Justice Alito’s sage words. Justices should not “pursue a reform agenda,” on either side of First Street. Let Judges be Judges.

I should stress that my earlier analyses of Justice Stevens’s conduct were not based on the Code of Conduct. (In fact, the Justices aren’t even bound by this Code.) This is a close question, which the commentary reflects. In my mind, a Justice should err on the side of not speaking about pending legislation that may come before the court. Stevens has taken this to the polar opposite. As I noted in a few interviews the past couple days, if Justice Stevens retired from the bench completely, my criticisms of the propriety of his comments would vanish.

Here is the entirety of Advisory Opinion No. 50, titled “Appearance Before a Legislative or Executive Body or Official.”

This opinion considers the propriety of a judge appearing before a legislative or executive body or official as a witness or as a supporter or opponent of proposed legislation.

Canon 4 of the Code of Conduct for United States Judges provides, in part:

A judge may engage in extrajudicial activities, including law- related pursuits and civic, charitable religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture and teach both law-related and non­ legal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, [or] lead to frequent disqualification . . .

A. Law Related Activities

(1) A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

(2) A judge may consult with or appear at a public hearing before an executive or legislative body or official:

(a) on matters concerning the law, the legal system, or the administration of justice;

(b) to the extent that it would generally be perceived that a judge’s judicial experience provides expertise in the area; or

(c) when the judge is acting pro se in a matter involving the judge or the judge’s interest.

The accompanying Commentary states:

Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits, and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.

Under Canon 4, a judge properly may appear before a legislative or executive body or official, at a public hearing or in private consultation, with respect to matters concerning the administration of justice. Examples would be matters relating to court personnel, budget, equipment, housing, and procedures. These matters are all vital to the judiciary’s housekeeping functions and the smooth operation of the dispensation of justice generally. This much is clear. See also Advisory Opinion No. 59 (“Providing Evaluation of Judicial Candidate to Screening or Appointing Authority”).

Here is the key portion, most salient to Justice Stevens’s testimony.

Less clear, however, is the propriety of a judge appearing on behalf of, or against, particular proposed legislation that relates to subject matter other than the administration of justice. Advocacy for or against legislation aimed at vital political issues or policy may well raise questions of propriety despite the fact that the judge, too, is a citizen and may be affected by the legislation. Such legislation also may spawn litigation likely to come before the judge. Although Canon 4A(2)(a)’s phrase “matters concerning the law” could be broadly construed to embrace nearly all legislation and executive decisions, the Committee advises that the reach of the canon is not that broad and, indeed, was intended to be comparatively narrow. See Advisory Opinion No. 93 (“Extrajudicial Activities Under Canon 4”).

There will, of course, be subject matter that falls close to the line between the permissible and impermissible categories for consultation with public bodies. The judge then must use his or her best judgment, having in mind the basic purpose and intent of the canon, and the likelihood that litigation relating to the subject matter will come before the judge.

In summary, with the exception noted below, a judge may appear at a public hearing before or consult with an executive or legislative body or official relative to matters not concerning judicial administration only “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.” Canon 4A(2).

Also relevant is Advisory Opinion No. 90, which elaborated on Advisory Opinion No. 50:

Consistent with this emphasis upon whether a judge brings to bear a special expertise, Canon 4A(2) provides that a judge may appear before or consult with an executive or legislative body or official only to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area at issue. We have accordingly advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual. See Advisory Opinion No. 50 (suggesting that a judge should not testify before a legislative committee on social legislation).

 

I am quoted in Houston Business Journal About Ashby High Rise – “Backdoor Zoning for the Wealthy”

April 30th, 2014

The Houston Business Journal interviewed me for a piece about the never-ending Ashby High Rise dispute.

“It’s backdoor zoning for the wealthy,” said Josh Blackman, a Houston lawyer and assistant professor of law at the South Texas College of Law in Houston.

Because there is no zoning in Houston, the disgruntled neighbors argue construction of the high-rise must be halted to adhere to city nuisance laws.

“The neighbors argue the high-rise itself is a nuisance because it is out of place and doesn’t fit in with the community,” said Blackman. “That’s not what nuisance law really is. It’s things like noise, pollution or vibrations.”

What’s next? Wilson can rule that the building cannot be built altogether or that it can be built with modifications to its current design. However, the case could go on for years with appeals and will undoubtedly affect future construction projects in Houston if the residents opposing the towers win.

“It really could chill development in certain parts of Houston since developers would be afraid of facing years of litigation,” Blackman said.

Justice Scalia’s Blunder Deleted Down The Memory Hole

April 30th, 2014

This is remarkable. In his dissent in EPA v. EME Homer, which he read from the bench, Justice Scalia made a big blunder.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday touphold the Environmental Protection Agency’s authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority’s decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice’s error was noted by University of California-Berkeley law professor Dan Farber, who called it “embarrassing” and a “cringeworthy blunder.”

I commented on this section of the opinion yesterday, noting the odd usage of French in the captioned header. Quite ironically, the section was labelled “Plus Ça Change” is loosely translated as the more things change, the more its the same thing.

Here is the original passage:

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS.

Within 24 hours, the original PDF was deleted from the Supreme Court’s website, and sent down the memory hole. The revised version eliminates any reference to the EPA. Now, it just says “parties.” Also deleted was “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” Now, it simply reads “Our Precedent.” Things certainly have changed. It now reads:

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regula- tion. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS.

Here is the original version:

scalia-old

And here is the modified version, with the file name 12-1182_553a (which may mean it was posted at 5:53 in the morning):

Scalia-new

This is quite embarrassing.

I am interviewed on Houston Public Radio About Ashby High Rise

April 30th, 2014

Yesterday I was interviewed on one of my favorite local programs, Houston Matters, about the ongoing dispute over the Ashby High Rise. I come on around 30:00. My favorite line, which was totally ad-libbed, was that “Ashby will rise from the ashes.”