Apr 29, 2016

Instant Analysis: Association of American Railroads v. U.S. Department of Transportation (CADC)

Last March, the Supreme Court decided Department of Transportation v. Association of American Railroads. The case raised all sorts of constitutional challenges to how Amtrak can set “metrics and standards” that affect its competitors. Writing for eight Justices, Justice Kennedy found that Amtrak was a governmental entity, and remanded to the D.C. Circuit whether the “metrics and standards” violate the separation of powers and the appointments clause. Justice Alito issued a vigorous opinion raising several other constitutional questions, including whether there is an appointments clause violation, the non-delegation doctrine, and other admin-law abuses.  Justice Thomas’s concurring opinion went the full Hamburger, and would have voted to reconsider the development of administration law since the Pope annulled Magna Carta.

On remand from the Supreme Court, a D.C. Circuit panel of Judges Brown, Sentelle, and Williams ruled against Amtrak–in an absolutely fascinating opinion. The Court finds not only a violation of the appointments clause–following Justice Alito’s lead–but also finds a due process violation under the precedent of Carter v. Carter Coal. Judge Brown’s opinion–which is almost certainly going to be subject to an en banc petition–is worthy of a careful study.

Here is the introduction of her opinion:

For the freight operators who challenged PRIIA, however, that decision left three questions unanswered. Conceding Amtrak’s governmental status, the operators— represented by the Association of American Railroads—ask: Does it violate due process for an entity to make law when, economically speaking, it has skin in the game? Does it violate the Appointments Clause for Congress to vest appointment power of a principal officer in the Surface Transportation Board? And is a government corporation whose board is only partially comprised of members appointed by the President constitutionally eligible to exercise regulatory power? We decline to reach the latter question, but we side with the freight operators on the former two. We conclude PRIIA violates the Fifth Amendment’s Due Process Clause by authorizing an economically self-interested actor to regulate its competitors1 and violates the Appointments Clause for delegating regulatory power to an improperly appointed arbitrator.

Judge Brown’s opinion begins with a tribute to Magna Carta, and its influence on our Due Process Clause:

No clause in our nation’s Constitution has as ancient a pedigree as the guarantee that “[n]o person . . . shall be deprived of life, liberty, or property without due process of law.” U.S. CONST. amend. V. Its lineage reaches back to 1215 A.D.’s Magna Carta, which ensured that “[n]o freeman shall be . . . disseised of his . . . liberties, or . . . otherwise destroyed . . . but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). …

Curbing the misuse of public power was the aim of the Magna Carta, and the Supreme Court has consistently concluded the delegation of coercive power to private parties can raise similar due process concerns.

To resolve this case, Judge Brown turns back to a pre-1937 precedent, Carter v. Carter Coal.

The abstract legal question at the heart of this case is whether it violates due process for Congress to give a self- interested entity rulemaking authority over its competitors. The Supreme Court has confronted the question only once. See Carter v. Carter Coal Co., 298 U.S 238 (1936).

In case you were wondering, the due-process component of Carter v. Carter Coal was never overturned by the Supreme Court. As we learned in NFIB v. Sebelius, Bailey v. Drexel Furniture and other pre-switch-in-time cases–no matter what the professoriate may say– are still on the books. (I actually researched Carter v. Carter Coal for the proposition of shareholder derivative standing, so was familiar of its ongoing validity).

In a sentence that must make the blood boil of all post-New Dealers, Judge Brown writes:

We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business . . . of a competitor.” Carter Coal, 298 U.S. at 311.

During oral arguments, Justice Breyer charged counsel for respondents with going “back to Lochner.”

JUSTICE BREYER: Going back to Carter v. Carter Coal.


JUSTICE BREYER: We could go back to Lochner.

Brown reads Carter v. Carter Coal as standing for the proposition that Congress cannot delegate power to self-interested firms that use that power to nakedly promote their self-interest.

The power to self-interestedly regulate the business of a competitor is, according to Carter Coal, anathema to “the very nature of things,” or rather, to the very nature of governmental function. Delegating legislative authority to official bodies is inoffensive because we presume those bodies are disinterested, that their loyalties lie with the public good, not their private gain. But here, the majority producers “may be and often are adverse to the interests of others in the same business.” Id. That naked self-interest compromised their neutrality and worked “an intolerable and unconstitutional interference with personal liberty and private property.” Id. Accordingly, the Court invalidated the Act as “so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment.”

Note that this is not a reversal of the normal rational-basis standard for substantive due process cases, but rather a species of the non-delegation doctrine as applied through the due process clause. But you can be sure that is how the government will characterize it.

The court takes a deep dive into the Framer’s views of rationally-self interested government officials, who would use the power of the state to aggrandize their own authority.

In fact, our Constitution’s ingenious system of checks and balances assumes government officials will act self-interestedly. “Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good,” the very first installment of the Federalist Papers opined. The Federalist No. 1, at 33 (C. Rossiter ed., 1961) (Hamilton). “But it is a thing more ardently to be wished than seriously to be expected.” Id. And as Alexander Hamilton observed elsewhere: “We may preach till we are tired of the theme, the necessity of disinterestedness in republics, without making a single proselyte.” Alexander Hamilton, The Continentalist No. IV, in 3 The Papers of Alexander Hamilton 99, 103 (Harold C. Syrett ed., 1962). Self-interested lawmaking was not some shocking aberration; it was an unwelcomed expectation, one our Constitution endeavored to channel and check. See The Federalist No. 51, at 321–22 (Madison) (C. Rossiter ed., 1961) (“Ambition must be made to counteract ambition.”).

Ambition must be made to counteract ambition. I couldn’t have said it better than myself.

With this framework, Judge Brown finds that Amtrak is self-interested:

 Amtrak’s self-interest is readily apparent when viewed, by contrast, alongside more traditional governmental entities that are decidedly not self-interested. The government of the United States is not a business that aims to increase its bottom line to achieve maximum profitability. Unlike for-profit corporations, government strives—at least in theory—for an equilibrium of revenues and expenditures, where the revenue obtained is no more and no less than the operating costs of the services provided. Amtrak’s charter stands in stark contrast. Its economic self-interest as it concerns other market participants is undeniable.

Under Carter Coal, such a delegation cannot stand:

Armed with coercive regulatory power, Amtrak wields a weapon of considerable advantage in its competitive battle for scarce track. And while the Constitution may grudgingly accept the reality of self-interestedness, it does not endorse it as an unmitigated good.

Congress delegated its legislative power to an entity that it designed to be the opposite of “presumptively disinterested.” Carter Coal, 298 U.S. at 311. Like coal competitors, whose “diversity of view[s]” concerning the challenges of the industry “[arose] from their conflicting and even antagonistic interests,” id., the antagonistic interests of freight operators and Amtrak transform the development of new performance metrics and standards into an unfair game of zero sums.

Judge Brown, joined by Sentelle, previously issued a concurring opinion in Hettinga v. United States that cast serious doubt on the Court’s post-1937 jurisprudence.

The court also finds a violation of the appointments clause, which I will try to address in a later post.

As the foregoing analysis suggests, among the Framers’ chief concerns at the constitutional convention were questions of who should be permitted to exercise the awesome and coercive power of the government. Tyrannous abuse of that power precipitated revolution against Great Britain. Overly restrictive access to it crippled our young nation under the Articles of Confederation. The novel equipoise the Constitution struck was to vest the legislative, executive, and judicial powers in independent branches of government and then empower each to check the others.

One last note. In the event that this case goes en banc, the math is funny because there were two senior judges (Sentelle and Williams) on the panels. The two senior judges don’t get to vote for the case to go en banc, but they do get to sit on the en banc court. If it goes en banc, there would be six judges appointed by Republican Presidents (Brown, Sentelle, Williams, plus Henderson, Griffith, and Kavanaugh). With Garland recused, there would be six judges appointed by Democratic presidents (Rogers, Tatel, Srinivasan, Millett, Pillard, and Wilkins).

As Sean Marotta pointed out on twitter, per D.C. Circuit Rule 35(d), a 6-6 en banc vote affirms “the decision under review.”

If the en banc court divides evenly, a new judgment affirming the decision under review will be issued.

But this case was on direct remand from the Supreme Court. The panel decision today addressed issues that were not addressed by the District Court, and that were decidedly left open by the Supreme Court’s decision. I think this would have the effect of “affirming” the judgment for the government, without endorsing any of the reasons why they win. This lineup could ensure that the issue makes a repeat trip to SCOTUS.

Read More
Jan 4, 2016

Instant Analysis of “Executive Actions to Reduce Gun Violence and Make Our Communities Safer”

Tonight the White House released a “Fact Sheet” discussing the executive actions the executive branch will take with respect to gun control. Not even President Obama has figured out how give a “Fact Sheet” the force of law–he’s trying, I’m sure–so the only important aspects of the lengthy document are whether an agency is proposing a rule, whether a rule is being finalized, or whether the President issued a directive to an agency. Everything else, as they say, is hortatory fluff. (Update: Thanks to Sean Marotta, who found that many of the finalized rules were proposed some time ago).

First, ATF is “finalizing a rule” to expand the scope of people who are required to run background checks prior to selling guns.

ATF is finalizing a rule to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entity.

The President did not set a specific number of sales that triggers the rule, as many feared. (Update: Sean found the proposed rule was put out in 2013).

Second, ATF is “finalizing a rule” concerning lost or stolen firearms:

ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit.

(Update: Sean found the proposed rule was put out in 2014).

Third, the Social Security Administration “has indicated that it will begin the rulemaking process” to prohibit people with certain mental illnesses–that render them unable to manage their own finances–from owning guns. (Note that they will go through the rulemaking process for this one, as it includes certain due process rights for those denied the right).

The Social Security Administration has indicated that it will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.

Fourth, HHS is “finalizing a rule” to make it easier for states to report information about people who are prohibited from owning a gun for mental health reasons.

The Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons. … Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals

Fifth, ATF is “finalizing a rule” that makes it impossible for people to bypass the background check process by using a gun trust.

ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation.

This measure, I’m sure, will hinder hardened criminals who hire attorneys to set up gun trusts prior to buying a gun. I know lawyers in blue states who have made an entire practice about building these trusts.

Sixth, ATF “issued a final rule” concerning lost or stolen guns.

Today, ATF issued a final rule clarifying that the licensee shipping a gun is responsible for notifying law enforcement upon discovery that it was lost or stolen in transit.

Seventh, there is a “presidential memorandum” that urges the agencies to investigate smart gun technologies, such as microstamping and fingerprint scanners.

Issue a Presidential Memorandum directing the Department of Defense, Department of Justice, and Department of Homeland Security to take two important steps to promote smart gun technology. …

The Presidential Memorandum also directs the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety. …

Millions of dollars have already been invested to support research into concepts that range from fingerprint scanners to radio-frequency identification to microstamping technology.

At first blush this is extremely underwhelming. I’m sure some gun control advocates are livid. But there is more here than meets the eye. My sense is that the President is setting the stage for future legislation actions. Think about what the actions as a whole accomplish. The President is building the framework for a national registry of people who are not fit to own firearms due to “mental health” concerns. By streamlining the process by which states can report this information–through waiver of HIPAA requirements–the President is signaling to blue states that they can tackle gun control at the local level, and this can ultimately be used nationally. Bloomberg and those funding this mission are no fools. Once such a database is built and tested, it will be so easy for a President Clinton to fold that into the instant background check. Additionally, deeming millions of people who are unable to manage their own finances incompetent to own guns is a significant stigmatization of the right to keep and bear arms. This could ultimately be expanded to other forms of state and federal welfare. This mission creep would be particularly insidious. Finally, funding research into the microstamping and finger-print-scanner guns will provide the basis for a future Congress to mandate these technologies for personal use. I don’t believe for a second that the DOD will require service revolvers to be finger-print activated. A similar research-now-legislate-later approach was used in New Jersey.

These regulations will be challenged in court, as Obama knew they would. But it doesn’t matter. This is simply laying the groundwork for future action when a Congress, more to his liking, is able to act. This is a long-game approach to gun control.

Read More
Jun 8, 2015

Instant Analysis: Zivotofsky v. Kerry

I will add my thoughts about Zivotofsky as I make my way through the opinion.

Read More
Jun 8, 2015

Instant Analysis: Jackson v. San Francisco (2nd Amendment Case)

Today the Supreme Court denied certiorari in Jackson v. San Francisco, a Second Amendment case where the City requires that lawfully-owned handguns must be stored in a locked container or have a trigger lock. Justice Thomas, joined by Justice Scalia, dissented from the denial of certiorari. I explored in a piece in the American Spectator that the Court has denied review of every single 2nd Amendment case since Heller. This case continues that tradition.

The dissent faults the 9th Circuit for effectively disregarding Heller, focusing on the “core protection” of the right.

Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.

Thomas’s dissent makes clear this law, which nullifies the right of self defense if someone is asleep and cannot unlock the gun in time, is in “serious tension” with Heller.

The decision of the Court of Appeals is in serious tension with Heller. …  The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Francisco’s law burdens the core of the Second Amendment right. That burden is significant.

Next Thomas sketches out the massive circuit split that has emerged since Heller.

Compare Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) (“We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny”), with id., at 1271 (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny”).

While Justice Thomas does not purport to resolve that issue, he explains the San Francisco law doesn’t survive any scrutiny:

One need not resolve that dispute to know that something was seriously amiss in the deci-sion below. In that decision, the Court of Appeals recog- nized that the law “burdens the core of the Second Amendment right,” yet concluded that, because the law’s burden was not as “severe” as the one at issue in Heller, it was “not a substantial burden on the Second Amendment right itself.” 746 F. 3d, at 963–965.

Thomas turns to the First Amendment to provide a basis to resolve these questions:

But nothing in our decision in Heller suggested that a law must rise to the level of the absolute prohibition at issue in that case to constitute a “substantial burden” on the core of the Second Amendment right. And when a law burdens a constitu- tionally protected right, we have generally required a higher showing than the Court of Appeals demanded here. See generally Heller, 554 U. S., at 628–635; Turner Broad- casting System, Inc. v. FCC, 512 U. S. 622, 662 (1994) (explaining that even intermediate scrutiny requires that a regulation not “burden substantially more speech than is necessary to further the government’s legitimate inter- ests” (internal quotation marks omitted)).

Thomas urges that the Court should have granted the case to set the Circuit straight:

The Court should have granted a writ of certiorari to review this questionable decision and to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights. See Heller, 554 U. S., at 634 (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis what is really worth insisting upon”); id., at 635 (explaining that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”).

The denial is especially striking as the Court takes other cases involving constitutional rights.

The Court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights. See, e.g., Glossip v. Gross, 574 U. S. ___ (2015) (cert. granted) (Eighth Amendment); Ontario v. Quon, 560 U. S. 746 (2010) (Fourth Amendment); Hill v. Colorado, 530 U. S. 703 (2000) (First Amendment). In- deed, the Court has been willing to review splitless deci- sions involving alleged violations of rights it has never previously enforced. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) (right to limit on punitive damages awards). And it has even gone so far as to review splitless decisions involving alleged violations of rights expressly foreclosed by precedent. See, e.g., Boumediene v. Bush, 553 U. S. 723 (2008) (right of aliens held outside U. S. territory to the privilege of habeas corpus); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in adult, consensual same-sex intimate behavior). I see no reason that challenges based on Second Amendment rights should be treated differently. 


This echoes a point I made years ago, but has become truer since–the Second Amendment is treated by the Court as a second-class right.

With only Thomas and Scalia in dissent, we can presume that the Chief and Alito are content with maintaining this status quo where the lower courts continue to trivialize Heller.


Read More
Feb 17, 2015

Instant Analysis: Injunction in Texas v. United States

At 10:22 p.m., Judge Hanen issued his long-awaited decision in Texas v. United States, temporarily enjoining DHS from implementing DAPA. (Disclosure: I filed a brief in support of Texas.) The injunction is here. The opinion is here. The 123-page decision is extremely thorough. It spends over 60 pages on standing, and the remainder on the procedural APA claim. It doesn’t even address the Take Care clause.

The opinion has tw0 main parts. First, it finds that the states have standing. Second, it concludes that DHS lacks the discretion to institute DAPA.

The standing analysis tracks closely the arguments advanced by Texas, which I addressed here. In short, DAPA provides legal presence to aliens, who can then obtain drivers licenses in the states. This court concluded (correctly in my mind) that these licenses impose a cost on the states. The DOJ previously argued in the 9th Circuit that it was unconstitutional for Arizona to exclude DACA beneficiaries from receiving drivers licenses. The court found a similar analysis estops the government from claiming Texas can change its laws to deny DAPA beneficiaries licenses. The court (correctly in my mind) rejects the argument that DAPA will cause an influx of illegal immigration. This argument was too speculative. The standing analysis is really thorough. Contrary to what you may think, I am fairly confident this will stand up on appeal. The merits, is another story.

The merits analysis begins on p. 68. On p. 92, the court explains that Congress knows how to “delegate discretionary authority,” and has not done so here.


On p. 98, the court finds a “complete abdication” under Heckler v. Cheney.


98 99

The court also makes a point I address in Part II of my series of DAPA–the Secretary, and not individual officers set the the policies. There is no individual discretion (p. 108).


In an extended footnote, the court explains that DHS could not identify a single applicant denied for DACA due to discretionary factors.

109a 110

Although the court doe snot reach the constitutional issue, the “abdication” analysis under the APA claim mirrors what a constitutional “Take Care” analysis would look like. So the court tipped his hand how the constitutional analysis would come out.

The final portion of Judge Hanen’s opinion stresses over, and over again, that a preliminary injunction is warranted to maintain the status quo. This is an important point that has been stressed with the same-sex marriage litigation. Allowing 4 million people to sign up for DAPA cannot be undone. The President has said so himself. From p. 121:


I’m certain much of the analysis you will read focuses on Judge Hanen’s previous writings about immigration and executive power. The 123 page decision is extremely thoughtful and comprehensive. Unlike the drivel from the District Court in Pennsylvania that reached out to decide an issue that was not before him, Judge Hanen has authored an authoritative and measured analysis of a really difficult legal issue.

What next? As I noted in this post in December, once the preliminary injunction issues, this case will rocket up to the 5th Circuit, and to SCOTUS by the end of this term. The Court will have to resolve this issue, and cannot let it linger on the certiorari docket till next term. As if this term couldn’t get any more intense!

Read More
Mar 20, 2013

Instant Analysis: Decker v. Northwest Environmental Defense Center – Auer Is In Trouble.

Back in December, I attended oral argument in Decker v. Northwest Environmental Defense Center, a Clean Water Act case that I did not know much about. At the time, I noted that the Chief Justice smacked down the government lawyer for the EPA’s decision to change their policy mere days before the argument. Also, the attorneys for the logging interest begged the Court not to send the case back to the 9th Circuit (I sat next to the attorney’s sister), while the environmentalists begged the Court to DIG the case.

Today we have an opinion in this case. Justice Kenendy writing for the Court found that the recent amendments do not make the case moot. Applying Auer deference, the Court finds that the EPA’s interpretation is reasonable.

The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. For reasons now to be explained, the Court concludes the EPA’s determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997).

Justice Scalia had an important concurrence on Auer deference.

I do not join Part III. The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough.

To Scalia, Auer is nothing more than Chevron deference for regulations:

The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Seminole Rock, supra, at 414. But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains

Wow, Nino is schmalzing it up with citations to Holmes & Marbury v. Madison & Montesquieu & Blackstone & Federalist 81!?

As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). . . . But the purpose of interpretation is to determine the fair meaning of the rule—to “say what the law is,” Marbury v. Madison . . . “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws . . . Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543–544 (J. Cooke ed. 1961)

For all these reasons, Nino would not defer to an agencies interpretation of its own rules.

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot jus- tify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

Because the fairest reading of the agency’s rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.

Au Revoir Auer.

Chief Justice Roberts, joined by Justice Alito, disagreed with Scalia’s opinion, and said this was not the right time to revisit Auer.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.

Not even the Professors want to revisit Auer!

Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don’t do it, again in a footnote. See Reply Brief for Petitioners in No. 11–338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 223–224 (1997) (declining to decide question that received only “scant argumentation”). Out of 22 amicus briefs, only two—filed by dueling groups of law professors—addressed the issue on the merits.

And Roberts tells “the bar” that Auer and Seminale Rock is in doubt.

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent

Scalia, Roberts, and Alito are not down for Auer.

Read More
Mar 11, 2013

Instant Analysis: Bloomberg Soda Ban “Arbitrary and Capricious” & “Eviscerates” Separation of Powers

Here is an early report from CNBC. I will try to find the opinion. Michael Bloomberg can’t even satisfy the rational basis test!?

Update: From WSJ:

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” New York Supreme Court Judge Milton Tingling decided Monday.

The regulations are “fraught with arbitrary and capricious consequences,” the judge wrote. “The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole….the loopholes in this rule effectively defeat the stated purpose of the rule.”

Update 2: Courtesy of WSJ, here is a link to the opinion.

It is a pretty dry opinion, but the crux of it seems to be that since the law was not created by the elected branches, but rather some sort of administrative agencies, the law is invalid.

And here is why the law violates the rational basis test:



And it gets better. The judge refers to Bloomberg’s plan as an “Administrative Leviathan” and “eviscerates” separation of powers.


Read More
Feb 20, 2013

Instant Analysis: Gunn v. Minton

Federal question jurisdiction makes me bizarrely excited. Here is a quick run-down of Gunn v. Minton.

First, I should note that the Court highlighted the dissenting positions of Justices Guzman and Medina, both graduates of the South Texas College of Law, and Justice Don Willettt, a friend of this blog.

Justice Guzman, joined by Justices Medina and Willett, dissented. The dissenting justices would have held that the federal issue was neither substantial nor disputed, and that maintaining the proper balance of responsibility between state and federal courts precluded relegating state legal malpractice claims to federal court.

These judges got it right. Here is the issue as framed by the Chief:

As relevant here, Congress has authorized the federal district courts to exercise original jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. §1331, and, more particularly, over “any civil action arising under any Act of Congress relating to patents,” §1338(a). Adhering to the demands of “[l]inguistic consistency,” we have interpreted the phrase “arising under” in both sections identically, applying our §1331 and §1338(a) precedents interchangeably. See Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 808–809 (1988). For cases falling within the patent-specific arising under jurisdiction of §1338(a), however, Congress has not only provided for federal jurisdiction but also eliminated state jurisdiction, decreeing that “[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents.” §1338(a) (2006 ed., Supp. V).

I still wonder how depriving state courts of federal jurisdiction is constitutional (see lots of posts here).

To determine whether jurisdiction was proper in the Texas courts, therefore, we must determine whether it would have been proper in a federal district court—whether, that is, the case “aris[es] under any Act of Congress relating to patents.”

Roberts lays out the  two ways “a case can “aris[e] under” federal law.” First, American Well Works’ “Creates the cause of action” test. That was Holmes.

Minton’s original patent infringement suit against NASD and NASDAQ, for example, arose under federal law in this manner because it was authorized by 35 U. S. C. §§271, 281.

But the other avenue for arising under in claims that “Find its origin in state” law is quite murky.

But even where a claim finds its origins in state rather than federal law—as Minton’s legal malpractice claim indisputably does—we have identified a “special and small category” of cases in which arising under jurisdiction still lies. Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 699 (2006). In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first

Roberts turns to Grable, a case that was decided while I was taking CivPro.

In an effort to bring some order to this unruly doctrine several Terms ago, we condensed our prior cases into the following inquiry: Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”? Grable, 545 U. S., at 314. That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.

So here we get a clarification of Grable:

Applying Grable’s inquiry here, it is clear that Minton’s legal malpractice claim does not arise under federal patent law. Indeed, for the reasons we discuss, we are comfortable concluding that state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of §1338(a). Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction.

Got that? The “unlikely to have the sort of significance for the federal system” is the newest addition to the “arising under” morass.

The Court also opens up the “significance” analysis to look at the federal system as a whole, rather than the particular issues before the Court.

As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

Curiously, only one citation to Merrell Dow and Smith v. Kansas City Title & Trust (in which Holmes dissented). In contrast, Grable cited Merrell Dow 23 times. I reckon that Stevens opinion is on the wane.

A second illustration of the sort of substantiality we require comes from Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), which Grable described as “[t]he classic example” of a state claim arising under federal law. 545 U. S., at 312. In Smith, the plaintiff argued that the defendant bank could not purchase certain bonds issued by the Federal Government because the Government had acted unconstitutionally in issuing them. 255 U. S., at 198. We held that the case arose under federal law, because the “decision depends upon the determination” of “the constitutional validity of an act of Congress which is directly drawn in question.” Id., at 201. Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government “securities were issued under an unconstitutional law, and hence of no validity.” Ibid.; see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 814, n. 12 (1986).

Roberts also has an interesting discussion of how state courts should consider patent cases–hint, check with what federal courts have done/would do.

Nor will allowing state courts to resolve these cases undermine “the development of a uniform body of [patent] law.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 162 (1989). Congress ensured such uniformity by vesting exclusive jurisdiction over actual patent cases in the federal district courts and exclusive appellate jurisdiction in the Federal Circuit. See 28 U. S. C. §§1338(a), 1295(a)(1). In resolving the nonhypothetical patent questions those cases present, the federal courts are of course not bound by state court case-within-a-case patent rulings. See Tafflin v. Levitt, 493 U. S. 455, 465 (1990). In any event, the state court case-within-a-case inquiry asks what would have happened in the prior federal proceeding if a particular argument had been made. In answering that question, state courts can be expected to hew closely to the pertinent federal precedents. It is those precedents, after all, that would have applied had the argument been made. Cf. ibid. (“State courts adjudicating civil RICO claims will . . . be guided by federal court interpretations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guided by state court interpretations of state law”). As for more novel questions of patent law that may arise for the first time in a state court “case within a case,” they will at some point be decided by a federal court in the context of an actual patent case, with review in the Federal Circuit. If the question arises frequently, it will soon be resolved within the federal system, laying to rest any contrary state court precedent; if it does not arise frequently, it is unlikely to implicate substantial federal interests. The present case is “poles apart from Grable,” in which a state court’s resolution of the federal question “would be controlling in numerous other cases.”

Roberts concludes by saying that the state court’s resolution of the patents will not be binding precedent–they are only used for that one case.

As we recognized a century ago, “[t]he Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy.” New Marshall Engine Co. v. Marshall Engine Co., 223 U. S. 473, 478 (1912). In this case, although the state courts must answer a question of patent law to resolve Minton’s legal malpractice claim, their answer will have no broader effects. It will not stand as binding precedent for any future patent claim; it will not even affect the validity of Minton’s patent. Accordingly, there is no “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” Grable, supra, at 313. Section 1338(a) does not deprive the state courts of subject matter jurisdiction.

Read More
Dec 4, 2012

Instant Analysis: Arkansas Game & Fish Commission v. United States

The Court 8-0, per Justice Ginsburg, held that “Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”

One threshold question Steve raised is why the 5th Amendment applies to “private property” owned by the state, as the Takings Clause states “[N]or shall private property be taken for public use, without just compensation.” I think there is an easy answer, and an answer deeper in the thickets. The easy answer is that property owned by the state is private, in the sense that it is not abandoned land left in the commons. States own lots of land, which they can use for parks or other purposes, but it is still private, at least with respect to several sticks in the bundle. To some extent, they can exclude people (for example, by charging a fee to enter a park). They can alienate it (sell it to a private developer). Etc.

But, I think the deeper, more interesting issue is when you are talking about dual sovereigns–when the federal government is trying to take property of the state. In some respects, the state is acting like a private party would, at the mercy of the superior sovereign. Are there any cases about whether state governments could take federal property?

Anyway, back to the case. I shall read on.

This case considers when a temporary taking, such as temporary flooding, becomes “permanently continued.” Of course, temporary takings are looked at under Penn Central.

Ordinarily, this Court’s decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking . . .  the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is “a per- manent or inevitably recurring condition, rather than an inherently temporary situation.” 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.

The Court continued its pattern of noting the nebulousness of regulatory takings (a topic that I found quite difficult to teach for that reason, thank you very much Justices). This is a pretty good summary, that I would share with my Property II students, but their exam was last night. Oh well. Good timing RBG.

We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area. True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central, 438 U. S., at 124. With this in mind, we turn to the question presented here—whether temporary flooding can ever give rise to a takings claim.

After streaming through the Court’s precedents on flooding, RBG fluidly summarized:

Ever since, we have rejected the argument that govern-ment action must be permanent to qualify as a taking. Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” . . . Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.

RBG narrowly construed a precedent, from the dawn of the regulatory takings era (not too long after Penn Coal), to counter the government’s position.

We do not read so much into the word “permanent” as it appears in a nondispositive sentence in Sanguinetti. That case, we note, was decided in 1924, well before the World War II-era cases and First English, in which the Court first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If the Court indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.

Just for good measure, she cites John Marshall’s line in Cohens v. Virginia about dicta.

We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

Also, RBG adds her own canon of statutory interpretation: Read On. (not sure if Garner and Scalia got this in their tome):

The Government also asserts that the Court in Loretto interpreted Sanguinetti the same way the Federal Circuit did in this case. That assertion bears careful inspection. A section of the Court’s opinion in Loretto discussing permanent physical occupations parenthetically quotes Sanguinetti’s statement that flooding is a taking if it constitutes an “actual, permanent invasion of the land.” 458 U. S., at 428. But the first rule of case law as well as statutory interpretation is: Read on. Later in the Loretto opinion, the Court clarified that it scarcely intended to adopt a “flooding-is-different” rule by the obscure means of quoting parenthetically a fragment from a 1924 opinion. The Court distinguished permanent physical occupations from temporary invasions of property, expressly including flooding cases, and said that “temporary limitations are subject to a more complex balancing process to determine whether they are a taking.”

But then, RBG throws some cold water on the flooding argument.

To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course in- cumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions

RBG also douses some of the “prophetic” fears of expanding what constitutes a regulatory taking.

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby, and today’s modest decision augurs no deluge [JB: Awesome pun!] of takings liability.

RBG notes that the government raised an argument, essentially, for the first time at oral arguments. The Court would not consider it.

At oral argument, the Government tendered a different justification for the Federal Circuit’s judgment, one not aired in the courts below, and barely hinted at in the brief the Government filed in this Court: Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause. Tr. of Oral Arg. 30–39; Brief for United States 26–27. “[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we express no opinion on the proposed upstream/downstream distinction and confine our opinion to the issue explored and decided by the Federal Circuit.

Chief Justice Roberts could not be reached for comments.

Also, the Court does not address the implications of Arkansas riparian law:

1 Arkansas water law is barely discussed in the parties’ briefs, see Brief for United States 43, but has been urged at length in a brief amicus curiae filed by Professors of Law Teaching in the Property Law and Water Rights Fields.

A scholars brief that was cited when the merit briefs ignored an issue!

So here’s the holding:

We rule today, simply and only, that governmentinduced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking.

Read More
Nov 27, 2012

Instant Analysis: 2nd Circuit’s 2nd Amendment Concealed Cary Case

The Second Circuit in Kachalsky v. Cacace upheld New York’s gun licensing law, including the discretionary policy for granting concealed-carry permits.

In doing so, the Court parted with Judge Kavanaugh’s dissenting view in Heller IIJudge Elrod, and “academics,” held that the traditional tiers of scrutiny to apply to the Second Amendment.

 A number of courts and academics, take the view that Heller’s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right—as understood through that right’s text, history, and tradition—it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional “[u]nder any of the standards of scrutiny” applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights.

Good thing the Second Amendment doesn’t have an Anti-Injunction Act!

Anyway, the 2nd Circuit’s analysis concedes that the 2nd Amendment has “some application” outside the home.

What we know from these decisions is that Second 15 Amendment guarantees are at their zenith within the home. 16 Heller, 554 U.S. at 628-29. What we do not know is the 17 scope of that right beyond the home and the standards for 18 determining when and how the right can be regulated by a 19 government. This vast “terra incognita” has troubled courts 20 since Heller was decided. United States v. Masciandaro, 638 21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the 22 Court). Although the Supreme Court’s cases applying the 1 Second Amendment have arisen only in connection with 2 prohibitions on the possession of firearms in the home, the 3 Court’s analysis suggests, as Justice Stevens’s dissent in 4 Heller and Defendants in this case before us acknowledge, 5 that the Amendment must have some application in the very different context of the public possession of firearms. 10 6 7 Our analysis proceeds on this assumption.

The Court has an interesting, and frank discussion about the role that history plays in this analysis.

It seems apparent to us that unlike the situation in 2 Heller where “[f]ew laws in the history of our Nation have 3 come close” to D.C.’s total ban on usable handguns in the 4 home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins. 15 5 Heller, 6 554 U.S. at 629. History and tradition do not speak with 7 one voice here. What history demonstrates is that states 8 often disagreed as to the scope of the right to bear arms, 9 whether the right was embodied in a state constitution or 10 the Second Amendment. . . .

Even if we believed that we should look solely to this 17 highly ambiguous history and tradition to determine the 18 meaning of the Amendment, we would find that the cited 19 sources do not directly address the specific question before 20 us: Can New York limit handgun licenses to those 21 demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper 2 cause requirement does not operate as a complete ban on the 3 possession of handguns in public. Analogizing New York’s 4 licensing scheme (or any other gun regulation for that 5 matter) to the array of statutes enacted or construed over 6 one hundred years ago has its limits.

In other words, the court acknowledge that the history is “highly ambiguous,” and does not speak directly to the question before the court.

The court also has an interesting discussion of what I’ve called equality of rights–treating the amendments in a similar fashion.

Plaintiffs raise a second argument with regard to how 8 we should measure the constitutional legitimacy of the New 9 York statute that takes a decidedly different tack. They 10 suggest that we apply First Amendment prior-restraint 11 analysis in lieu of means-end scrutiny to assess the proper cause requirement. 16 12 They see the nature of the rights 13 guaranteed by each amendment as identical in kind. One has 14 a right to speak and a right to bear arms. Thus, just as 15 the First Amendment permits everyone to speak without 16 obtaining a license, New York cannot limit the right to bear 17 arms to only some law-abiding citizens. We are hesitant to 18 import substantive First Amendment principles wholesale into 19 Second Amendment jurisprudence. Indeed, no court has done so.

The court decides not to import these terms. Why? It would “Result in the erosion of hard-won First Amendment rights.” In other words, the Second Amendment is different from all other rights (see The Constitutionality of Social Cost that poses just that question):

But it 16 would be as imprudent to assume that the principles and 17 doctrines developed in connection with the First Amendment 18 apply equally to the Second, as to assume that rules 19 developed in the Second Amendment context could be 20 transferred without modification to the First. Endorsing 21 that approach would be an incautious equation of the two 22 amendments and could well result in the erosion of hard-won 23 First Amendment rights. As discussed throughout, there are 1 salient differences between the state’s ability to regulate 2 each of these rights.

The court goes on to talk about the fact that this is a bad vehicle, but let’s pause to address this. This is the clearest statement I’ve seen by a court saying that  applying First Amendment doctrine to Second Amendment would dilute the First Amendment’s power. This argument must be premised on the fact that the Second Amendment is a second-class right.

The court finds that “heightened scrutiny” is not automatically triggered here  because the law in question is not a complete ban.

Here, some form of heightened 2 scrutiny would be appropriate. New York’s proper cause 3 requirement places substantial limits on the ability of law- 4 abiding citizens to possess firearms for self-defense in 5 public. And unlike Decastro, there are no alternative 6 options for obtaining a license to carry a handgun. 7

We do not believe, however, that heightened scrutiny 8 must always be akin to strict scrutiny when a law burdens 9 the Second Amendment. Heller explains that the “core” 10 protection of the Second Amendment is the “right of law- 11 abiding, responsible citizens to use arms in defense of 12 hearth and home.” Heller, 554 U.S. at 634-35. Although we 13 have no occasion to decide what level of scrutiny should 14 apply to laws that burden the “core” Second Amendment 15 protection identified in Heller, we believe that applying 16 less than strict scrutiny when the regulation does not 17 burden the “core” protection of self-defense in the home 18 makes eminent sense in this context and is in line with the approach taken by our sister circuits.

Perhaps the coolest part of this opinion, is that in the discussion of the importance of the home, it cites the Third Amendment. Kudos CA2:

That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.

Because the 2nd Amendment permits “latitude,” it passes “intermediate scrutiny.”

We believe state regulation of the use of firearms in 8 public was “enshrined with[in] the scope” of the Second 9 Amendment when it was adopted. Heller, 554. U.S. at 634. 10 As Plaintiffs admitted at oral argument, “the state enjoys a 11 fair degree of latitude” to regulate the use and possession 12 of firearms in public. The Second Amendment does not 13 foreclose regulatory measures to a degree that would result 14 in “handcuffing lawmakers’ ability to prevent armed mayhem 15 in public places.” Masciandaro, 638 F.3d at 471 (internal 16 quotation marks omitted). 17

Because our tradition so clearly indicates a 18 substantial role for state regulation of the carrying of 19 firearms in public, we conclude that intermediate scrutiny 20 is appropriate in this case. The proper cause requirement 21 passes constitutional muster if it is substantially related 22 to the achievement of an important governmental interest.

Restricting handgun possession in public to those who 16 have a reason to possess the weapon for a lawful purpose is 17 substantially related to New York’s interests in public 18 safety and crime prevention. It is not, as Plaintiffs 19 contend, an arbitrary licensing regime no different from 20 limiting handgun possession to every tenth citizen. This 21 argument asks us to conduct a review bordering on strict 22 scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive 2 alternative. But, as explained above, New York’s law need 3 only be substantially related to the state’s important 4 public safety interest. A perfect fit between the means and 5 the governmental objective is not required. Here, instead 6 of forbidding anyone from carrying a handgun in public, New 7 York took a more moderate approach to fulfilling its 8 important objective and reasonably concluded that only 9 individuals having a bona fide reason to possess handguns 10 should be allowed to introduce them into the public sphere. 11 That New York has attempted to accommodate certain 12 particularized interests in self defense does not somehow 13 render its concealed carry restrictions unrelated to the 14 furtherance of public safety.

The court also addressed the link between guns and danger.

To be sure, we recognize the existence of studies and 16 data challenging the relationship between handgun ownership 17 by lawful citizens and violent crime. Plaintiffs’ Reply Br. 18 at 37-38. We also recognize that many violent crimes occur 19 without any warning to the victims. But New York also 20 submitted studies and data demonstrating that widespread 21 access to handguns in public increases the likelihood that 22 felonies will result in death and fundamentally alters the safety and character of public spaces. J.A. 453, 486-90. 2 It is the legislature’s job, not ours, to weigh conflicting 3 evidence and make policy judgments. Indeed, assessing the 4 risks and benefits of handgun possession and shaping a 5 licensing scheme to maximize the competing public-policy 6 objectives, as New York did, is precisely the type of 7 discretionary judgment that officials in the legislative and 8 executive branches of state government regularly make.

And, in an epic citation contrast, the majority counters Heller with NIFB!

To be sure, “the enshrinement of constitutional rights 10 necessarily takes certain policy choices off the table.” 11 Heller, 554 U.S. at 636. But there is also a “general 12 reticence to invalidate the acts of [our] elected leaders.” 13 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 14 2579 (2012). “‘Proper respect for a coordinate branch of 15 government’ requires that we strike down [legislation] only 16 if ‘the lack of constitutional authority to pass [the] act 17 in question is clearly demonstrated.’” Id. (quoting United 18 States v. Harris, 106 U.S. 629, 635 (1883)). Our review of 19 the history and tradition of firearm regulation does not 20 “clearly demonstrate[]” that limiting handgun possession in 21 public to those who show a special need for self-protection 22 is inconsistent with the Second Amendment. I

This is a really well-reasoned opinion. Let’s see what SCOTUS does with it.

P.S. The Second Circuit should stop putting line numbers in slip opinions. It is absolutely worthless in the digital age, and it makes copying from opinions very difficult.

Read More
Nov 17, 2012

Instant Analysis: Closing Address by Justice Scalia at #FedSoc2012

I am over my tweet limit?! My running comments of Justice Scala’s address, will begin at 4:15 till 5:00 here.

Read More
Oct 14, 2012

Instant Analysis: Atlas Shrugged II

I thought Part II was much better than Part I (my reviews were here and here), but still left a lot to be desired.

The plot was quite slow at times, and I found myself somewhat bored (and I really like the plot!).  The special effects looked better than the last movie, but still felt cheap. The musical score was ineffective. The “love scenes” between Rearden and Dagny were way too PG-13.

A number of key roles were recast. The actors playing Dagny  and Rearden were worse, but the actor playing Francisco were much better. I thought the Lillian Rearden character was quite effective. James Taggart’s portrayal was not quite slimy enough. Wesley Mouch (rhymes with ouch, I always pronounced it as mooch) was not nearly nefarious enough. Teller (from Penn & Teller) had a random cameo. Oh, and random, but Cherryl Brooks was played by Alex Mack (Larisa Oleynick).

My theater in Houston was maybe 40% full.

Spoilers below the jump.

Read More
Oct 10, 2012

Instant Analysis: Fisher v. University of Texas, Austin

The transcript is here. I have class at 2 CDT, so my analysis will be brief here, but I’ll finish it later.

Petitioner (Abigail Fisher)

Bert Rein, a bit eager to get started, opened with the Mr. Chief Justice line before the Chief announced the case. Simon didn’t say so!

MR. REIN: Mr. Chief Justice, and may it please the Court -­ CHIEF JUSTICE ROBERTS: Well, I get to say that this is Case Number 11-345, Fisher against the University of Texas at Austin. And you get to say -­ ORAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER MR. REIN: Mr. Chief Justice, General Suter trained me too well. Mr. Chief Justice, and members of the Court, and may it please the Court:

Justices Ginsburg and Sotomayor opened up by asking about standing, and whether the fact that Fisher would not have been admitted regardless of her race, and because Fisher has since graduated from LSU, and has no intent of enrolling at UT.

MR. REIN: — the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that. We — we started the case before it was clear whether she would or wouldn’t be admitted.

Rein and Sotomayor talked over each other for a bit. Sotomayor kept asking about damages, Rein repeating that it didn’t matter whether she would have been ultimately admitted. Scalia jumps in and notes that there have been discrimination cases involving “state contracting, and we haven’t required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise.”

JUSTICE SCALIA: Her claim is not necessarily that she would have been — would have been admitted, but that she was denied a fair chance in the admission lottery. Just as when a person is denied participation in the contracting lottery, he has suffered an injury.

Then Breyer drops the bomb–he asked if the petitioners aimed to overturn Grutter. He alludes to the Grutter 25-year clock (see my countdownhere) and says only 9 years have elapsed.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

Fisher is not seeking to overturn Grutter.

 MR. REIN: Justice Breyer, we have said very carefully we were not trying to change the Court’s disposition of the issue in Grutter, could there be a legitimate, a compelling interest in moving — in using race to establish a diverse class. What — the problem that we’ve encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass -­

And poor Justice Breyer is worried about not having enough time to talk at oral arguments (lol)

JUSTICE BREYER: Well, how do you want to argue it right now in the next ten minutes? I’m interested because I have a very short time to get my question out, and I need to know how you are going to argue it. MR. REIN: Well, Justice Breyer, our argument is we can satisfy Grutter if it’s properly read.

And then SGB’s line of questioning is rudely interrupted-by RGB, who calls the plan at issue here “more modest” than the plan upheld in Michigan. Justice Scalia pokes fun at Justice O’Connor’s 25-year maxim, and notes that this is not the holding of the case.

JUSTICE SCALIA: And by the way, do you think that Grutter — this goes to Justice Breyer’s question — do you think that Grutter held that there is no more affirmative action in higher education after 2028? MR. REIN: No, I don’t. JUSTICE SCALIA: Was that the holding of Grutter?

The WSJ reported that Justice O’Connor was sitting in the front row, looking quite sad. Next Justice Sotomayor asked further about the critical mass, and how much it is.

JUSTICE SOTOMAYOR: So could you tell me what a critical mass was? I’m looking at the number of blacks in the University of Texas system. Pre-Grutter, when the State was indisputably still segregating, it was 4 percent. Today, under the post-Grutter system, it’s 6 percent. The 2 percent increase is enough for you, even though the State population is at 12 percent? Somehow, they’ve reached a critical mass with just the 2 percent increase?

And this colloquy is important–I think Justice Sotomayor may be speaking personally here.

JUSTICE SOTOMAYOR: No — putting aside — I don’t — I’m not going to quarrel with you that if demographics alone were being used, I would be somewhat concerned. But you can’t seriously suggest that demographics aren’t a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel? MR. REIN: Well, I think if you start to split out subgroups of minorities, you mistake I think what I think is the proper thrust of Grutter, or at least ought to be. JUSTICE SOTOMAYOR: It might be — it might be insulting to some to be thrown into a pot.

But isn’t that what asking a student to check a box about race does? Throw someone into a pot? After more arguments about the meaning of critical mass, and determining when it is reached, petitioner stated that it is not his burden.

JUSTICE SOTOMAYOR: So what are you telling us is the standard of critical mass? At what point does a district court or a university know that it doesn’t have to do any more to equalize the desegregation that has happened in that particular State over decades, that it’s now going to be stuck at a fixed number and it has to change its rules. What’s that fixed number? MR. REIN: We — it’s not our burden to establish the number. It was the burden of the University of Texas to determine whether -­

Defining a “critical mass” without reference to a quota (forbidden) proved difficult. Petitioner asserted that without defining a critical mass, it will be impossible to determine if it is ever reached, and thus impossible to determine if a program is narrowly tailored.

MR. REIN: Put — put aside whether this was necessary and whether it was an appropriate last resort in a quest for diversity and critical mass, because Grutter’s not without limits. But I’ll put that aside and let me come directly to your question. First of all, if you think about narrow tailoring, you can’t tailor to the unknown. If you have no range of evaluation, if you have no understanding of what critical mass means, you can’t tailor to it.

JUSTICE SOTOMAYOR: So you have to set a quota for critical mass?

MR. REIN: No. There’s a huge difference, and it’s an important one that is not well put out by the University of Texas. Having a range, a view as to what would be an appropriate level of comfort, critical mass, as defined in Grutter, allows you to evaluate where you are -­

JUSTICE SOTOMAYOR: So we won’t call it a quota; we’ll call it a goal, something Grutter said you shouldn’t have. MR. REIN: Well, Justice Sotomayor, I think it’s very important to distinguish between the operative use of that range, in other words, that’s where we are, and we’re going to use race until we get there every year in consideration of each application, which was a problem.

JUSTICE SOTOMAYOR: Boy, it sounds awfully like a quota to me that Grutter said you should not be doing, that you shouldn’t be setting goals, that you shouldn’t be setting quotas; you should be setting an individualized assessment of the applicants. Tell me how this system doesn’t do that.

MR. REIN: This system doesn’t — I mean, it’s not narrowly tailored because it doesn’t fit. There are certain forms of Grutter that it follows. It -­

Justice Kennedy inquired what problem the petitioner had with the affirmative action program, in light of the fact that it admits so few minorities (that is, those who are not already admitted under the top 10% plan):

JUSTICE KENNEDY: Could you comment on this, and then I hope we can get back to Justice Alito’s question. You argue that the University’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it’s so few, then what’s the problem.

MR. REIN: Well, it’s a question -­

JUSTICE KENNEDY: Then — let’s assume -­

MR. REIN: Excuse me, Justice Kennedy.

JUSTICE KENNEDY: — that it resulted in the admission of many minorities. Then you’d come back and say, oh, well, this is — this shows that we were probably wrongly excluded. I -­

MR. REIN: Well -­ JUSTICE KENNEDY: — I see an inconsistency here.

MR. REIN: Well -­

JUSTICE KENNEDY: Is it — are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit; is that the point?

RBG makes a good point. Though the Top 10% is facially neutral, is was created for the purpose of increasing minority enrollment.

 JUSTICE GINSBURG: But you say, and that’s okay because it’s — it’s race-neutral, but is it really? I mean, the — the only reason that they instituted the 10 percent plan was to increase minority enrollment.

As Ilya Somin noted in this post, the top 10% plan was merely an end-run around transparent race-conscious measures.

 If the Court rules that explicit race-based affirmative action is unconstitutional where “diversity” can be achieved by facially neutral plans like the ten percent plan, the result is likely to be a raft of admissions policies that appear race-neutral, but actually are deliberate attempts to achieve a particular racial balance by relying on admissions criteria that correlate with race (which is the reason why the ten percent plan was enacted in the first place, after a federal court invalidated the University of Texas’ racially explicit affirmative action policy in 1996). In this way, racial preferences in admissions will not be eliminated, but will merely be driven underground and become less transparent.

Both Justices Breyer and Sotomayor asked whether federal judges should be dictating how schools should manage their admission policies:

JUSTICE BREYER: Okay. Now, is that a lot? Is that a little? There are several thousand admissions officers in the United States, several thousand universities, and what is it we’re going to say here that wasn’t already said in Grutter that isn’t going to take hundreds or thousands of these people and have Federal judges dictating the policy of admission of all these universities?

JUSTICE SOTOMAYOR: So now we’re going to tell the universities how to run and how to weigh qualifications, too?

Then AMK asks point blank how this law violates strict scrutiny:

JUSTICE KENNEDY: Well, perhaps you could summarize by saying — by telling us, from your point of view, this plan fails strict scrutiny on one or two or both levels, (a), because the objective is inappropriate or ill defined, and, (b), because of the implementation is defective. Which or both of those are you arguing?

MR. REIN: We have argued both, and we continue to argue both. It is not a necessary -­

JUSTICE KENNEDY: And in what respect does this plan fail strict scrutiny under either of those -­ under both of those categories?

MR. REIN: Okay. Under the category — the first category, was it a necessary means of pursuing a compelling interest, we don’t believe they’ve shown any necessity for doing what they were doing. And certainly, it — race should have been a last resort; it was a first resort. That’s, in a nutshell, that prong of it. And in order — and they failed in every respect. If you go to narrow tailoring, what we are saying is they didn’t consider alternatives, and their treatment of, as we have pointed out, Asian Americans and Hispanics makes a — an incomprehensible distinction. They say, we don’t worry about Asians, there are a lot of Asians, it’s a demographic measure, which is a forbidden measure. They are in excess of their share of the Texas population. But if you are trying to find individual comfort levels, if you are breaking it down between African Americans and — and Hispanics, the -­

Respondent (University of Texas, Austin)

The University of Texas, which was represented by the Texas Solicitor General at the District Court and Court of Appeals level decided to hire Greg Garre and Maureen Mahoney (who argued Grutter) at the Supreme Court. Garre argued today.

Right of the bat, the Chief leads Garre down a difficult trail of what it means to check the “Hispanic” box on a a college application.

CHIEF JUSTICE ROBERTS: Counsel, before — I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -­

CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I’m one-quarter percent Hispanic.

MR. GARRE: Then they would check that box, Your Honor, as is true -­

CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?

MR. GARRE: Your Honor, that was — they would make that self-determination, Your Honor. If anyone, in any part of the application, violated some honor code then that could come out -­

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

MR. GARRE: I don’t think — I don’t think it would, Your Honor. I don’t think that that issue would be any different than the plan upheld in Grutter or the Harvard plan or in Bakke.

CHIEF JUSTICE ROBERTS: You don’t check in any way the racial identification?

MR. GARRE: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I’m aware of.

CHIEF JUSTICE ROBERTS: So how do you know you have 15 percent African American — Hispanic or 15 percent minority?

Then things go from bad to worse for Garre. Scalia teases out the critical mass concept, and argues that diversity on campus is not enough–they need diversity in each class. How can that be assessed?

JUSTICE SCALIA: And how do they decide? You know, it’s — they want not just a critical mass in the school at large, but class by class? How do they figure out that particular classes don’t have enough? What, somebody walks in the room and looks them over to see who looks — who looks Asian, who looks black, who looks Hispanic? Is that how it’s done?

MR. GARRE: No, Your Honor, and let me try to be clear on this. The university has never asserted a compelling interest in any specific diversity in every single classroom. It has simply looked to classroom diversity as one dimension of student body diversity.

JUSTICE SCALIA: I don’t know what you are talking about. I mean it is either a factor that is validly in this case or it isn’t. Do they look to individual classroom diversity or not? And if so, how do they decide when classes are diverse?

Then the Chief gets ticked:

JUSTICE SCALIA: Yes, it doesn’t explain to me how they go about, classroom by classroom, deciding how many minorities there are.

MR. GARRE: Your Honor, there are student lists in each classroom. The student lists —

CHIEF JUSTICE ROBERTS: There are student lists in each classroom that have race identified with the students.

MR. GARRE: No, no, Your Honor. Of course, each classroom, the university knows which students are taking its classes and one can then, if you want to gauge diversity in the classrooms, go back -­

After some questioning from Justice Alito about how many minorities are admitted to UT as a result of the affirmative action program, independent of the top 10% question–to which Garre had no answer–the Chief asked him point blank about the “critical mass.”

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter –

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor…

And that context is not based on the population of Texas.

Next, RBG asks if the Top 10% plan was so effective, why did Texas need further race-conscious measures?

Scalia hits Garre over what I think is one of the main failings of the diversity rationale–the notion that racial diversity is necessary in order to achieve intellectual diversity:

MR. GARRE: Because, Your Honor, as is true for any group, and the Harvard plan that this Court approved in Bakke specifically recognized this, you would want representatives and different viewpoints from individuals within the same — the same racial group, just as you would from individuals outside of that.

JUSTICE SCALIA: What kind of viewpoints? I mean, are they political viewpoints?

MR. GARRE: Anyone’s experiences, where they grew up, the situations that they — that they experience in their lives are going to affect their viewpoints.

JUSTICE SCALIA: But this has nothing to do with racial diversity. I mean, you’re talking about something else.

Of course race could be used as proxy to determine intellectual diversity, but it could hardly be said to be narrow tailoring. Asking questions about a student’s life experiences for example–though it would be much tougher for admission officers to consider–would lead to more accurate, and less race-conscious, measures of breadth of experiences.

Next Justice Alito asks the question that David Bernstein thinks loses the case for UT:

MR. GARRE: If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don’t think it’s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.
Now, that’s your argument? If you have -you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -parents both have graduate degrees. They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
MR. GARRE: No, Your Honor. And let me -let me answer the question.First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.
MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.
JUSTICE KENNEDY: So what you’re saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences
JUSTICE KENNEDY: Well, that’s the necessary — that’s the necessary response to Justice Alito’s question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus –
JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that’s race.

Garre said what he didn’t want to say–and what we all know. UT is looking for certain races, namely Hispanics and African-Americans. But they can’t say that. So they use the diversity rationale. But at heart, when pressed, he must admit that they are looking for specific races–rather than general notions of diversity–and this is exactly the rationale that Grutter does not allow.

Chief Justice Roberts asks again, to no avail, what the critical mass is, and how should the Court determine if the policy is narrowly tailored without knowing what the mass is. Justice Sotomayor also chimes in.

CHIEF JUSTICE ROBERTS: Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?

JUSTICE SOTOMAYOR: Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University’s judgment that race is still necessary? That’s the bottom line of this case. And you’re saying, and I think rightly because of our cases, that you can’t set a quota, because that’s what our cases say you can’t do. So if we’re not going to set a quota, what do you think is the standard we apply to make a judgment?

Will 25 years cover it?

JUSTICE SCALIA: But that holds for only -­ only another what, 16 years, right? Sixteen more years, and you’re going to call it all off.

MR. GARRE: Your Honor, we don’t read Grutter as establishing that kind of time clock. We are looking at this -­

JUSTICE SCALIA: But you’re appealing to Grutter, and that’s what it said.

I bet Justice O’Connor was wincing at this point. I can’t wait for Justice Stevens’s next speech where he criticizes this case, said no one, ever.

Alito asks point blank about a critical mass of Asian-Americans.

JUSTICE ALITO: Well, in terms of diversity, how do you justify lumping together all Asian Americans? Do you think — do you have a critical mass of Filipino Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: — Cambodian Americans?

MR. GARRE: — the common form that’s used has Asian American, but also, next to that, has a form that says country of origin where that can be spelled out.

JUSTICE ALITO: But do you have a critical mass as to all the subgroups that fall within this enormous group of Asian Americans?

MR. GARRE: Your Honor, we’ve looked to whether or not we have a critical mass of underrepresented minorities, which is precisely what the Grutter decision asks us to do.

After some more questioning, Garre turns to the jurisdictional issue, and asserts that the declaratory and injunctive relief have dropped out because she graduated, and the only remaining issue is the request for monetary damages–namely her application fees.

Amicus (United States)

Alito opens up and asks Verrilli right off the bat if specific groups–disadvantaged Hispanics and African Americans–should receive a preference, and the SG tap-dances around the question.

JUSTICE ALITO: Does the United States agree with Mr. Garre that African American and Hispanic applicants from privileged backgrounds deserve a preference?

GENERAL VERRILLI: I understand that differently, Justice Alito. Here’s how we understand what is going on with respect to the admissions process in the University of Texas, and I am going to address it directly. I just think it needs a bit of context to do so.

Alito tries to pin the SG down about asking about equally qualified candidates–one white, one black–Verrilli continues to tap-dance.

JUSTICE ALITO: If you have two applicants who are absolutely the same in every respect: They both come from affluent backgrounds, well-educated parents. One falls within two of the groups that are given a preference, the other doesn’t. It’s a marginal case. It’s the last — the last position available in the class. Under the Texas plan, one gets in; one doesn’t get in. Now, do you agree with that or not?


JUSTICE ALITO: Do you agree with — do you agree that that is an incorrect statement of the facts, or do you agree that that’s an incorrect understanding of the Equal Protection Clause?

GENERAL VERRILLI: I think it’s both. I think the — there is no automatic preference in Texas. And I think this is right in the — it says at page 398a of the Joint Appendix — the — they describe the process as saying, “An applicant’s race is considered only to the extent that the applicant, viewed holistically, will contribute to the broader vision of diversity desired by the university.”

Scalia repeats the question, and asks about identical applicants, and the SG keeps turning to holistic considerations.

JUSTICE SCALIA: It’s not a matter of not everyone; it’s a matter of two who are identical in all other respects.


JUSTICE SCALIA: And what does the racial preference mean if it doesn’t mean that in that situation the minority applicant wins and the other one loses?

GENERAL VERRILLI: There may not be a racial preference in that situation. It’s going to depend on a holistic, individualized consideration of the applicant.

AMK asks point-blank whether race can be a tie-breaking factor:

JUSTICE KENNEDY: I don’t understand this argument. I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn’t. Well, then, we should just go away. Then — then we should just say you can’t use race, don’t worry about it.

GENERAL VERRILLI: I don’t think it’s a tie-breaker. I think it functions more subtly than that, Justice Kennedy.

RBG swoops in to the rescue, and asserts that this holistic type of use of race was at issue in Bakke, Grutter, and military recruiting.

JUSTICE GINSBURG: But that’s the same -­ the same would be true in — of the Bakke plan, that in some cases it’s going to make a difference. The same would be true under Grutter. The same would be true under the policies now in existence at the military academies.

GENERAL VERRILLI: That — that is exactly right, Justice Ginsburg, but the point is that it’s not a mechanical factor.

Today’s oral arguments were brought to you by the letter H, for Holistic. That is, till Mitt Romney cuts funding for Sesame Street, in which case today’s arguments will be brought to you by the number 0, for that is how many dollars PBS will receive from the feds.

Sotomayor returns to Alito’s question, and makes what I think is a fair point–no two students are ever actually equal in all respects except race.

JUSTICE SOTOMAYOR: General, I think, as I take your answer, is that the supposition of Justice Alito’s question is truly impossible under this system. There are not two identical candidates because there are not identical mechanical factors that -­ except the 10 percent plan. Under the PIA, the factors are so varied, so contextually set, that no two applicants ever could be identical in the sense that they hypothesize.

GENERAL VERRILLI: That’s correct. They make specific individualized judgments about each applicant -­

JUSTICE SOTOMAYOR: Because no two people can be the same -­

Of course that is true, but to a busy admissions officer, students are invariably reduced to basic factors like SAT score, GPA, and other factors. Two students look a lot more alike through those narrow lenses.

And, a serious burn to Texas A&M and Texas Tech, Justice Alito asks about a ROTC candidate who is denied admission to UT:

JUSTICE ALITO: — because the time is about to expire, so you’ve got a marginal candidate who wants to go to the University of Texas at Austin and is also interested in ROTC. Maybe if race is taken into account, the candidate gets in. Maybe if it isn’t, he doesn’t get in. How does that impact the military? The candidate will then probably go to Texas A&M or Texas Tech? Is it your position that he will be an inferior military officer if he went to one of those schools?

Hook ’em Sam!

The SG poo poos the notion of critical mass.

GENERAL VERRILLI: I don’t think critical — I agree with my friend that critical mass is not a number. I think it would be very ill-advised to suggest that it is numerical . . . GENERAL VERRILLI: I agree that critical mass — the idea of critical mass has taken on a life of its own in a way that’s not helpful because it doesn’t focus the inquiry where it should be.

And in the SG’s closing statement, reminiscent of his closing argument in NFIB v. Sebelius, he appeals directly to AMK:

I think it is important, Your Honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That’s what the University of Texas is trying to do with its admissions policy, and it should be upheld.

Pretty patronizing if you ask me.

Petitioner Rebuttal.

The Chief, in giving Rein 10 minutes, makes a quip about keeping the playing field level–the very type of argument used to support affirmative action. Snap. JGR set up Rein perfectly.

CHIEF JUSTICE ROBERTS: Thank you, General. Mr. Rein, 10 minutes.


MR. REIN: Thank you, Mr. Chief Justice. That’s more than I expected.

CHIEF JUSTICE ROBERTS: Just keeping the playing field level.

MR. REIN: Well, that’s what we’re seeking in this case, Mr. Chief Justice, a level playing field for Abby Fisher. So it’s most apt at this point.

Justice Sotomayor asks further about whether the damages are limited to the $100 application fee.

Towards the end, Sotomayor got in the zinger of the day.

JUSTICE SOTOMAYOR: So you don’t want to overrule Grutter, you just want to gut it.

MR. REIN: Excuse me?

JUSTICE SOTOMAYOR: You just want to gut it. You don’t want to overrule it, but you just want to gut it.

You heard me!

And that’s a wrap!

Read More
Jul 7, 2012

Instant Analysis: NFIB v. Sebelius

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

Read More
Jul 2, 2012

Instant Analysis: NFIB v. Sebelius (all of Roberts, most of Ginsburg)

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

Read More
Jul 1, 2012

Instant Analysis: NFIB v. Sebellius (this time with most of the Chief’s Opinion)

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).

I got through most of the Chief’s opinion. I’ll do more later.

Read More
Jun 30, 2012

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Still another night till I got to read the opinion, and even now I have just broken down the parts. Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).

I’ll fill in the rest later when I have time.

Chief Justice Owner, Err, John Roberts’s Controlling Opinion

Justice Ginsburg’s Concurring Opinion

Dissent of Justices Kennedy, Scalia, Thomas, and Alito

Dissent of Justice Thomas

Read More
Jun 29, 2012

Instant Analysis: United States v. Alvarez

Instant Analysis: United States v. Alvarez

I write this analysis at 35,000 feet, somewhere over Pennsylvania, as I continue my flight towards Jolly ‘Ol England.

Today, the Supreme Court per Justice Kennedy found that an act of Congress was “unprecedented,” with “no clear limiting principle,” and violated the Constitution. No, it wasn’t the ACA. It was the Stolen Valor Act. Ripoff.

So there were three opinions. Justice Kennedy wrote the plurality for the Chief, Ginsburg, and Sotomayor. Breyer wrote separately, joined by Kagan. Alito dissented, joined by Scalia and Thomas.

Kennedy Plurality

What prose. This opening paragraph reads like something the Chief wrote. It is not very Kenendy-esque.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.

Remember when the 10th Circuit decided a case on this point while Alvarez was pending? Yeah. The Court did take note of that.

After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act consti- tutional. United States v. Strandlof, 667 F.3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Act’s validity.

The Court noted that this case, in many respects, is a follow-up to Snyder v. Phelps.

This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie.

The Court, interestingly tied the compelling interest of honoring the soldiers to the “precepts of the Constitution for which they fought.” This makes me think, a bit, of Stevens’s dissent in Texas v. Johnson (flag burning case) where he came out in the opposite direction with respect to free speech.

And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

After reciting a long list of “content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expres- sion] long familiar to the bar,’”
the Court notes that “Absent from those few categories where the law allows content-based regulation of speech is any general excep- tion to the First Amendment for false statements.”

The Court also commented on the wide-ranging implications of this statute, which seem to apply anywhere, anytime. And this statute is *UNPRECEDENTED*. Not the ACA. The Stolen Valor Act Case. No doubt this was Kennedy gigging the Chief. Who knows.

Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered con- versations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en- tirely without regard to whether the lie was made for the purpose of material gain.

Not only is this law unprecedented, there is “no clear limiting principle.” I think the wrong case got the slippery slope argument.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern- ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sus- tained, there could be an endless list of subjects the Na- tional Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the in- terest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give govern- ment a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

And it is Alvarez, and not Jones (GPS case) that gets the citation to 1984!

So Kennedy lists a number of recipients who have received the Medal of Honor. Kinda reminds me of Justice Blackmun’s listing of great baseball players in Flood v. Kuhn.

The Court stressed that “counterspeech” suffices to achieve the government’s interest. Total paen (and citation) to Holmes’s marketplace of ideas theory. And now we know that the marketplace of ideas Includes trolling “online.”

The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refuta- tion, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation . . . The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the unin- formed, the enlightened; to the straight-out lie, the simple truth. . . . See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap- plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalien- able rights of the person. And suppression of speech by the government can make exposure of falsity more diffi- cult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orches- trate public discussion through content-based mandates.

Mandates! Inalienable rights of the person! Civic Duty! Classic Tony. And he goes off on a stronger libertarian rant (I think here Justice Breyer must have parted company)

The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi- tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.

And AMK tells Congress they can fix this problem by putting that stuff in the Cloud!

In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restric- tive means among available, effective alternatives.” Ash- croft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Con- gressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individ- uals have already created databases similar to this, see Brief for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the De- partment of Defense investigated the feasibility of estab- lishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf- ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov- ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists.

And social costs!

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find re- spondent’s statements anything but contemptible, his right to make those statements is protected by the Consti- tution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.

Breyer Concurring Opinion

Breyer, along with Kagan, concurs in judgment only, and rejects a “strict categorical analysis.”

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4– 10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Govern- ment can achieve its legitimate objectives in less restric- tive ways

Breyer’s entire analysis rests on an ad-hoc balancing of what he calls “speech-related harms” along with many other interests. I could call these social costs, I suppose, though perhaps the thin air up here is diminishing my thinking capacity.

In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifica- tions, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and im- portance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to deter- mine whether the statute works speech-related harm that is out of proportion to its justifications.

Breyer also (aptly) labels strict scrutiny as “near-automatic condemnation” and rational basis review as “near-automatic approval.” This sounds in Marshall’s (or was it Brennan’s–dammit, can’t Google up here) theory that strict scrutiny was strict in theory, but fatal in fact.

But what is most fascinating here is that Kagan joins onto Breyer’s balancing tests. Not what I expected from a former First-Amendment scholar.

Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 5–7 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed “intermediate scrutiny” here

Breyer reject’s Holmes’s marketpalce of ideas theories. No Oliver Wendell Breyer here. Though, this echoes Breyer’s opinion in Sorrell.

Alito Dissent

Alito continues his reputation as the least-ardent supporter of the First Amendment speech (not exercise) clause. More broadly, Scalia and Roberts switched places with EMA. Scalia authored the majority opinion in EMA. Roberts concurred with Alito. Here, the Chief joins the majority opinion, but Scalia dissents.

By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.

Alito disputes that a database would be feasible, and that “counterspeech” cannot resovle this issue. He also knocks the plurality, and Breyer, for suggesting that Congress try again till it gets it right.

JUSTICE BREYER also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it even- tually passes a law that draws the line in just the right place.

Alito is not concerned about the majority’s slippery slope, and risks of limiting false statements about history or science.

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect. Tell- ingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.

Alito further rejects the fears of slippery slope as really an attack on over-criminalization.

In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amend- ment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intru- sive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct. If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be re- served for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.

Read More
Apr 25, 2012

Instant Analysis: Arizona v. United States (Oral Argument)

The transcript is here. Clement v. Verrilli. Round 2. (someone should make a Hayek-Keynes video for this).


Clement opens up with a long intro, and focuses that the burden to show preemption is on the federal government, not the state:

A State does not need to point to Federal 3 authorization for its enforcement efforts. Rather, the 4 burden is on the parties seeking to preempt a duly 5 enacted State law to point to some provision in 6 statutory law that does the preempting. Now, the United 7 States can’t really do that here, and the reason is 8 obvious. 9 There are multiple provisions of the Federal 10 immigration law that go out of their way to try to 11 facilitate State and local efforts to communicate with 12 Federal immigration officials in order to ascertain the 13 immigration status of individuals.

Sotomayor’s questions focused not on the fact that a person’s immigration status could be checked after he is detained based on probable cause, but on the length of that detention [Noteworthy, Sotomayor uses the word “illegal alien”–this is the term used in the statute]:

JUSTICE SOTOMAYOR: But I want to get to 22 how — assuming your position, that doing it on 23 a — there’s nothing wrong with doing it as it’s been 24 done in the past. Whenever anyone is detained, a call 25 could be made. What I see as critical is the issue of how long, and under — and when is the officer going to 2 exercise discretion to release the person? . . .

JUSTICE SOTOMAYOR: What happens if — this 13 is the following call — the call to the — to the 14 Federal Government. Yes, he’s an illegal alien. No, we 15 don’t want to detain him. 16 What does the law say, the Arizona law say, 17 with respect to releasing that individual?

MR. CLEMENT: But — but if what we’re 5 talking about is simply what happens then for purposes 6 of the Federal immigration consequences, the answer is 7 nothing. The individual at that point is released. . . . Now, I think in that circumstance, it’s very 19 clear what would happen, is an inquiry would be made to 20 the Federal officials that would say, do you want us to 21 transfer this person to your custody or hold this person 22 until you can take custody? And if the answer is no, 23 then that’s the end of it. That individual is released, 24 because there is no independent basis in that situation 25 for the State officer to continue to detain the individual at all.

RBG asks how can the state know if a person is removable–it is often a tricky question:

JUSTICE GINSBURG: But how would the State 3 officer know if the person is removable? I mean, that’s 4 sometimes a complex inquiry. 5 MR. CLEMENT: Well, Justice Ginsburg, I 6 think there’s two answers to that. One is, you’re 7 right, sometimes it’s a complex inquiry, sometimes it’s 8 a straightforward inquiry. It could be murder, it could 9 be a drug crime. But I think the practical answer to 10 the question is by hypothesis there is going to be 11 inquiry made to the Federal immigration authorities, 12 either the Law Enforcement Support Center or a 287(g) 13 officer. And presumably, as a part of that inquiry, 14 they can figure out whether or not this is a removable 15 offense or at least a substantially likely removable 16 offense.

Justice Kennedy asks whether a person could be detained for two weeks in order to make that determination of removeability:

JUSTICE KENNEDY: If it takes two weeks to 18 make that determination, can the alien be held by the 19 State for that whole period of time — 20

MR. CLEMENT: Oh, I don’t — 21

JUSTICE KENNEDY: — just under section 6? 22

MR. CLEMENT: I don’t think so, Your Honor, 23 and I think that, you know, what — in all of these 24 provisions, you have the Fourth Amendment backing up the 25 limits, and I think so —

1 JUSTICE KENNEDY: What — what would be the 2 standard? You’re the attorney for the alien, he — they 3 are going to hold him for two weeks until they figure 4 out whether this is a removable offense, and you say, 5 under the Fourth Amendment, you cannot hold for — what? 6 More than a reasonable time or — 7

MR. CLEMENT: Yes, ultimately, it’s a 8 reasonable inquiry. And I think that under these 9 circumstances what we know from the record here is that 10 generally the immigration status inquiry is something 11 that takes 10 or 11 minutes. I mean, so it’s not — 12 we’re not talking about something — or no more than 10 13 if it’s a 287(g) officer and roughly 11 minutes on 14 average if it’s the Law Enforcement Support Center.

Clement gave a similar response to a Justice Breyer hypo–all inquiries are backed by the Fourth Amendment.

Clement’s colloquy with his former boss, Justice Scalia, highlights why this case isn’t about what everyone thinks it is about–it is not about the 4th Amendment, racial profiling, or immigration law. It is about federal preemption.

JUSTICE SCALIA: Anyway, if this is a 19 problem, is it an immigration law problem? 20 MR. CLEMENT: It — 21

JUSTICE SCALIA: Or is it a Fourth Amendment 22 problem? 23

MR. CLEMENT: Justice Scalia, it is 24 neither — 25

JUSTICE SCALIA: Is the Government’s attack on this that it violates the Fourth Amendment? 2

MR. CLEMENT: No, of course the Federal 3 Government, that also has a lot of immigration arrests 4 that are subject to the Fourth Amendment, is not making 5 a Fourth Amendment claim here. And it’s neither an 6 immigration law concern or something that should be the 7 basis for striking down a statute on its face.

In a bizarre exchange, Breyer asks Clement if it would be OK to make a statement in an opinion (presumably his dissent?)

JUSTICE BREYER: All right. Can I make the 16 following statement in the opinion, and you will say 17 that’s okay. Imagine — this is imaginary. “We 18 interpret” — imagine — “we interpret Section 2(B) as 19 not authorizing or requiring the detention of any 20 individual under 2(B), either at the stop or in prison, 21 for a significantly longer period of time than that 22 person would have been detained in the absence of 2(B).” 23 Can I make that statement in an opinion, and 24 you’ll say, that’s right? 25

MR. CLEMENT: I think what you could say — JUSTICE BREYER: Can I say that? 2

MR. CLEMENT: I don’t think you can say just 3 that. 4 JUSTICE BREYER: No.

MR. CLEMENT: I think you can say something 6 similar, though. I think you probably could say, look, 7 this is a facial challenge. The statute’s never gone 8 into effect. We don’t anticipate that Section 2(B) 9 would elongate in a significant number of cases the 10 detention or the arrest. I think you could say that.

. . . And so I don’t think that this immigration 11 status check is likely to lead to a substantial 12 elongation of the stops or the detentions.

Justice Scalia asks if Arizona has to accept in its borders illegal aliens the feds are not interested in removing. Clement says no?!

JUSTICE SCALIA: You’ll concede that the — 10 that the State has to accept within its borders all 11 people who have no right to be there, that the Federal 12 Government has no interest in removing? 13

MR. CLEMENT: No, I don’t accept that, 14 Justice Scalia, but — 15 JUSTICE SCALIA: That’s all the statute — 16 and you call up the Federal Government, and te 17 Federal — yes, he’s an illegal immigrant, but that’s 18 okay with us. 19

MR. CLEMENT: Well — 20

JUSTICE SCALIA: And the State has no power 21 to close its borders to people who have no right to be 22 there? 23

MR. CLEMENT: Well, Justice Scalia, here’s 24 my response, which is all of this discussion, at least 25 as I’ve understood it, has been about 2(B) and to a lesser extent 6. 2 Now, section 3 of the statute does provide 3 an authority under State law to penalize somebody who 4 has violated essentially the Federal registration 5 requirement. So if that’s — as to that provision, 6 there would be a State authority, even under these 7 hypotheticals, to take action with respect to the 8 individual — 9

JUSTICE KENNEDY: I think — 10 MR. CLEMENT: — but not with respect to 11 the Federal — 12 JUSTICE KENNEDY: I think Justice Scalia’s 13 question was the — was the broader one, just as a 14 theoretical matter. Can we say, or do you take the 15 position that a State must accept within its borders a 16 person who is illegally present under Federal law? 17

MR. CLEMENT: Well, and I think — 18

JUSTICE KENNEDY: And that is by reason of 19 his alien — 20

MR. CLEMENT: And I think my answer to that 21 is no. I think the reason my answer is no has more to 22 do with our defense of section 3 and other provisions 23 than it does with respect to the inquiry and arrest 24 authority provisions, 2(B) and 6.

Alito gives a lethal hypo to Clement, and smacks him down:

MR. CLEMENT: Well, if I can just kind of 16 work back for a second. I mean, obviously, it’s a 17 pretty unusual circumstance where somebody produces an 18 out-of-state driver’s license, and that doesn’t dispel 19 reasonable suspicion for the officer; but, I’ll take the 20 hypo — 21

JUSTICE ALITO: Why would it dispel 22 reasonable suspicion if it’s — if the officer knows 23 it’s a state that issues driver’s licenses to aliens who 24 are not lawfully —

MR. CLEMENT: And that might be a situation where that’s the case, and then — then it wouldn’t 2 dispel the reasonable suspicion. But, say, in the 3 average case, I think it would.

Kennedy turned to whether Arizona’s policy ” stands as an obstacle to the accomplishment and execution of the full purposes

9 and objectives of Congress.”

 JUSTICE KENNEDY: But then the government on 19 this section is going to come and say, well, there may 20 be — this must be — this — the enforcement of this 21 statute, as Arizona describes it, will be in 22 considerable tension with our — with our basic 23 approach; isn’t that what I’m going to hear from the 24 government?

MR. CLEMENT: It may be what you’re going to hear, Justice Kennedy, but I don’t think you just take 2 the Federal government for its word on these things. 3 You know, it’s interesting, in DeCanas 4 itself, the SG said that that California statute was 5 preempted. And in DeCanas, this Court didn’t say, well, 6 you know, we’ve got this language from Hines, and we 7 have the SG tell us it’s preempted, that’s good enough 8 for us. They went beyond that, and they looked hard. 9 And what they did is they established that 10 this is an area where the presumption against preemption 11 applies. So, that seems one strike in our favor. 12 We have here a situation where there is an 13 express preemption provision, and it — it only 14 addresses the employer’s side of the ledger. So the 15 express preemption provision clearly doesn’t apply here. 16 So the only thing they have is this inference —

And–in a snipe at Nino–Sotomayor talks about the legislative history:

JUSTICE SOTOMAYOR: Well, for those of us 18 for whom legislative history has some importance, there 19 seems to be quite a bit of legislative history that 20 the — that the idea of punishing employees was raised, 21 discussed and explicitly rejected.

MR. CLEMENT: And here’s why I think, if you consider the 10 legislative history, for those who do, it really 11 supports us, because here’s what Congress confronted. I 12 mean, they started thinking about this problem in 1971. 13 They passed IRCA in 1986.

Justice Kennedy asks about a double-jeopardy challenge where a person is prosecuted for violating the federal and state laws:

JUSTICE KENNEDY: Would double prosecutions 19 be — suppose that an alien were prosecuted under 20 Federal law for violating basically the terms of 3, 21 could the States then prosecute him as well? 22

MR. CLEMENT: I think they could under 23 general double jeopardy principles and the dual 24 sovereignty doctrine. Obviously, if that was a 25 particular concern to you, that might be the basis as an 1 as-applied challenge if somebody was already prosecuted 2 under Federal law.


The SG didn’t even get to his argument before he was interrupted:

GENERAL VERRILLI: Mr. Chief Justice, and 8 may it please the Court: 9 CHIEF JUSTICE ROBERTS: Before you get into 10 what the case is about, I’d like to clear up at the 11 outset what it’s not about. No part of your argument 12 has to do with racial or ethnic profiling, does it? I 13 saw none of that in your brief. 14

GENERAL VERRILLI: That’s correct. 15

CHIEF JUSTICE ROBERTS: Okay. So this is 16 not a case about ethnic profiling. 17

GENERAL VERRILLI: We’re not making any 18 allegation about racial or ethnic profiling in the case. Mr. Clement is working hard this morning to 20 portray SB 1070 as an aid to Federal immigration 21 enforcement. But the very first provision of the 22 statute declares that Arizona is pursuing its own policy 23 of attrition through enforcement and that the provisions 24 of this law are designed to work together to drive 25 unlawfully present aliens out of the State. That is something Arizona cannot do because 2 the Constitution vests exclusive —

Sotomayor returns to Scalia’s question about whether Arizona has the power to exclude (the most essential stick, no?):

JUSTICE SOTOMAYOR: General, could you 4 answer Justice Scalia’s earlier question to your 5 adversary? He asked whether it would be the 6 Government’s position that Arizona doesn’t have the 7 power to exclude or remove — to exclude from its 8 borders a person who’s here illegally. 9

GENERAL VERRILLI: That is our position, 10 Your Honor. It is our position because the Constitution 11 vests exclusive authority over immigration matters with 12 the national government.

Scalia snips back and talks about the sovereignty of the state:

JUSTICE SCALIA: All that means, it gives 14 authority over naturalization, which we’ve expanded to 15 immigration. But all that means is that the Government 16 can set forth the rules concerning who belongs in this 17 country. But if, in fact, somebody who does not belong 18 in this country is in Arizona, Arizona has no power? 19 What does sovereignty mean if it does not include the 20 ability to defend your borders? 21

GENERAL VERRILLI: Your Honor, the Framers 22 vested in the national government the authority over 23 immigration because they understood that the way this 24 nation treats citizens of other countries is a vital 25 aspect of our foreign relations. The national government, and not an individual State — 2

JUSTICE SCALIA: But it’s still up to the 3 national government. Arizona is not trying to kick out 4 anybody that the Federal government has not already said 5 do not belong here. And the Constitution provides — 6 even — even with respect to the Commerce Clause — “No 7 State shall without the consent of Congress lay any 8 imposts or duties on imports or exports except,” it 9 says, “what may be absolutely necessary for executing 10 its inspection laws.” 11 The Constitution recognizes that there is 12 such a thing as State borders and the States can police 13 their borders, even to the point of inspecting incoming 14 shipments to exclude diseased material.

The Chief honed in on the SG’s argument that it is OK for the police, in an ad hoc fashion, to ask the feds about a person’s immigration status, but not in some kind of systematic fashion:

CHIEF JUSTICE ROBERTS: It seems an odd argument to say the Federal 14 agency has to answer the state’s question, but the state 15 can’t ask it. 16

GENERAL VERRILLI: Well, we’re not saying 17 the state can’t ask it in any individual case. We 18 recognize that section — 19

CHIEF JUSTICE ROBERTS: You think there are 20 individual cases in which the state can call the Federal 21 Government and say: Is this person here illegally? 22 GENERAL VERRILLI: Yes, certainly, but that 23 doesn’t make — 24

CHIEF JUSTICE ROBERTS: Okay. So doesn’t 25 that defeat the facial challenge to the Act?

GENERAL VERRILLI: No. I don’t think so, 2 Mr. Chief Justice, because the — I think the problem 3 here is in that — is in every circumstance as a result 4 of section 2(B) of the law, backed by the penalties of 5 section 2(H), the state official must pursue the 6 priorities that the state has set, irrespective of 7 whether they are helpful to or in conflict with the 8 Federal priorities. . . .

GENERAL VERRILLI: Well, if there’s a — if 8 there’s a state policy locked into law by statute, 9 locked into law by regulation, then we have a problem. 10 If it’s not

JUSTICE ALITO: That’s what I can’t 15 understand because your argument — you seem to be 16 saying that what’s wrong with the Arizona law is that 17 the Arizona legislature is trying to control what its 18 employees are doing, and they have to be free to 19 disregard the desires of the Arizona legislature, for 20 whom they work, and follow the priorities of the Federal 21 Government, for whom they don’t work.

Even Sotomayor had difficulty following this argument:

JUSTICE SOTOMAYOR: I’m sorry. I’m a little 12 confused. General, I’m terribly confused by your 13 answer. Okay? And I don’t know that you’re focusing in 14 on what I believe my colleagues are trying to get to.

Then the argument turned to what is really at issue–racial profiling:

GENERAL VERRILLI: I think there are three. 8 The first is the — the Hines problem of harassment. 9 Now, we are not making an allegation of 10 racial profiling; nevertheless, there are already tens 11 of thousands of stops that result in inquiries in 12 Arizona, even in the absence of S.B. 1070. It stands to 13 reason that the legislature thought that that wasn’t 14 sufficient and there needed to be more. 15 And given that you have a population in 16 Arizona of 2 million Latinos, of whom only 400,000 at 17 most are there unlawfully — 18

JUSTICE SCALIA: Sounds like racial 19 profiling to me. 20 GENERAL VERRILLI: And they’re — and given 21 that what we’re talking about is the status of being 22 unlawfully present — 23

JUSTICE SOTOMAYOR: Do you have the 24 statistics as to how many arrests there are and how 25 many — and what the — percentage of calls before the Official – Subject to Final Review Alderson Reporting Company 46 1 statute? 2 GENERAL VERRILLI: There is some evidence in 3 the record, Your Honor. It’s the — the Palmatier 4 declaration, which is in the Joint Appendix, was the — 5 he was the fellow who used the run the Law Enforcement 6 Support Center, which answers the inquiries. That — 7 that declaration indicates that in fiscal year 2009, 8 there were 80,000 inquiries and — 9

JUSTICE SCALIA: What does this have to do 10 with Federal immigration law? I mean, it may have to do 11 with racial harassment, but I thought you weren’t 12 relying on that. 13


JUSTICE SCALIA: Are you objecting to 15 harassing the — the people who have no business being 16 here? Is that — surely you’re not concerned about 17 harassing them. They have been stopped anyway, and all 18 you’re doing is calling up to see if they are illegal 19 immigrants or not. 20 So you must be talking about other people 21 who have nothing to do with — with our immigration 22 laws. Okay? Citizens and — and other people, right?

Tea Party Rally in One First Street?

The Chief summed up his view pithily:

CJ: It seems to me that the Federal Government 3 just doesn’t want to know who is here illegally or not. 4

GENERAL VERRILLI: No, I — I don’t think 5 that’s right. I think we want to be able to cooperate 6 and focus on our priorities.

And the SG made a law clerk funny, that didn’t get any laughs:

I mean, I think it’s as though, if I can use 7 an analogy, if you ask one of your law clerks to bring 8 you the most important preemption cases from the last 10 9 years, and they rolled in the last — the last hundred 10 volumes of the U.S. Reports and said, well, they are in 11 there. That — that doesn’t make it — 12

CHIEF JUSTICE ROBERTS: What if they just 13 rolled in Whiting? 14 (Laughter.) 15 CHIEF JUSTICE ROBERTS: That’s a pretty good 16 one.

And the most dreaded words when arguments aren’t going well and your time is up:

Excuse me. I see my —
21 CHIEF JUSTICE ROBERTS: No, keep going.

This bit was interesting. There is no way for the Feds to verify a person is actually a citizen if they do not possess a Passport:

Today, if you use the names Sonya Sotomayor, 4 they would probably figure out I was a citizen. But 5 let’s assume it’s John Doe, who lives in Grand Rapids. 6 So they are legal. Is there a citizen database? 7

GENERAL VERRILLI: The citizen problem is 8 actually a significant problem. There isn’t a citizen 9 database. If you — 10

JUSTICE SOTOMAYOR: I’m sorry, there is or 11 there isn’t? 12

GENERAL VERRILLI: There is not. If you 13 have a passport, there is a database if you look 14 “passports.” So you could be discovered that way. But 15 otherwise there is no reliable way in the database to 16 verify that you are a citizen unless you are in the 17 passport database. So you have lots of circumstances in 18 which people who are citizens are going to come up no 19 match. There’s no — there is nothing suggesting in the 20 databases that they have an immigration problem of any 21 kind, but there’s nothing to — 22

JUSTICE SOTOMAYOR: So if you run out of 23 your house without your driver’s license or 24 identification and you walk into a park that’s closed 25 and you’re arrested, you — they make the call to this agency. You could sit there forever while they — 2


JUSTICE SOTOMAYOR: Figure out if you’re — 4

GENERAL VERRILLI: While I’m at it, there is

Oy Nino made a deportation joke. Seriously.

JUSTICE SCALIA: Well, can’t you avoid that 25 particular foreign relations problem by simply deporting 1 these people? Look, free them from the jails — 2

GENERAL VERRILLI: I really think — 3

JUSTICE SCALIA: And send them back to the 4 countries that are — that are objecting. 5

GENERAL VERRILLI: This is a — 6 JUSTICE SCALIA: What’s the problem with 7 that? . . .

JUSTICE SCALIA: So we have to — we have to 5 enforce our laws in a manner that will please Mexico. 6 Is that what you’re saying? 7

GENERAL VERRILLI: No, Your Honor, but what 8 it does — no, Your Honor, I’m not saying that — 9

JUSTICE SCALIA: Sounded like what you were 10 saying.

Phew, its done.

CHIEF JUSTICE ROBERTS: Thank you, 8 Mr. Clement, General Verrilli. Well argued on both 9 sides. Thank you.




Read More
Apr 2, 2012

Instant Analysis: Florence v. Freeholders of County of Burlington

Strip searches are constitutional. It’s a Jersey Thing. This was a 5-4, except Thomas did not join Part IV regarding cases where an inmate is *not* transferred to the general population

Justice Kennedy Majority/Plurality Opinion

So here, the Court is not expert enough to micromanage a prison.

The case turns in part on the extent to which this Court has sufficient expertise and information in the record tomandate, under the Constitution, the specific restrictionsand limitations sought by those who challenge the visualsearch procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or un-justified response to problems of jail security. That necessary showing has not been made in this case. . . . The difficulties of operating a detention center must not be underestimated by the courts. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

I won’t even bother trying to reconcile this with Kennedy’s opinion in Brown v. Plata that told California that it had to release 40,000 prisoners due to overcrowding. The most dangerous prisoners can be let out, but the inmates in prison for most trivial offenses can have a prison guard peer into their anuses and genitalia. Got it.

Look at how the question is phrased–the answer is not surprising:

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the moreinvasive search procedures at issue absent reasonablesuspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.

We got “undoubted security imperatives” v. mere “assertions.” And, challengers bears the burden, while the prison receives “deference.”

So AMK makes the point that offenders for minor crimes can be the most dangerous:

The record provides evidence that the seriousness of anoffense is a poor predictor of who has contraband and that it would be difficult in practice to determine whetherindividual detainees fall within the proposed exemption. People detained for minor offenses can turn out to be the most devious and dangerous criminals. Cf. Clements v. Logan, 454 U. S. 1304, 1305 (1981) (Rehnquist, J., in chambers) (deputy at a detention center shot by misdemeanant who had not been strip searched). Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Johnston, Suspect Won’t Answer Any Questions, N. Y. Times, Apr. 25, 1995, p. A1. Police stopped serial killer Joel Rifkin for the same reason.McQuiston, Confession Used to Portray Rifkin as Methodical Killer, N. Y. Times, Apr. 26, 1994, p. B6. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. The Terrorists: Hijacker Got a Speeding Ticket, N. Y. Times, Jan. 8, 2002, p. A12. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search ofeveryone who will be admitted to their facilities.

How is *any* of this in the record?

CT did not join Part IV:

This case does not require the Court to rule on the typesof searches that would be reasonable in instances where, for example, a detainee will be held without assignment tothe general jail population and without substantial contactwith other detainees. . . . before the Court, however, do not present the opportunity to consider a narrow exception of the sort JUSTICE ALITO describes, post, at 2–3 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer,and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here.

So I gather CT would have gone even further, and held that such searches are appropriate even if the prisoner is not to be sent into general population. But, as he is wont to do, Thomas does not concur separately to tell us what is on his mind.’

And amazingly, the word “dignity” appears nowhere in AMK’s opinion (Breyer uses it in dissent). In fact, he poopoos the concerns:

Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. See Brief for Sister Bernie Galvin et al. as Amici Curiae; see also Hudson, 468 U. S., at 528 (“[I]ntentional harassment of even the most hardenedcriminals cannot be tolerated by a civilized society”); Bell, 441 U. S., at 560. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on thefacts of this case, however, and it is unnecessary to con- sider them here.

Roberts, concurring

The Chief concurs (curiously?) to leave the door open to possible exceptions to the rule:

I join the opinion of the Court. As with JUSTICE ALITO, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. . . . The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, toensure that we “not embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944) (Frankfurter, J.).

Imagine that JGR assigns an opinion to AMK, and the Chief concurs to say the majority isn’t balanced enough in favor of prisoner rights.

Alito, concurring

Alito also joins to narrow the scope of the opinion:

nothold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time oftheir initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

So in other words, if the person is not dangerous, he should not be humiliated.

Breyer, dissenting

So much for Sotomayor writing the majority opinion. She didn’t even write the dissent, which makes me think that she never had it assigned to her.

In contrast, rather than opening up with an ode to judicial deference to experts, Breyer (of all people!) focus on the humiliating nature of strip searchers:

In my view, such a search of an individual arrested for aminor offense that does not involve drugs or violence—saya traffic offense, a regulatory offense, an essentially civilmatter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believethat the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.

Breyer focuses on the safety cost to the individual’s dignity. Kennedy focuses on the liberty cost to the prison’s order and security.

I doubt that we seriously disagreeabout the nature of the strip search or about the seriousaffront to human dignity and to individual privacy that it presents. The basic question before us is whether sucha search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.

This dissent is somewhat unique as it tracks so carefully where it agrees with, and departs with the majority:

Nonetheless, the “particular” invasion of interests, Bell, 441 U. S., at 559, must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” Turner, supra, at 87. It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of thosearrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strongreasons to believe they are not justified.

Here, the prison officials bear the burden of justifying their policy.

Indeed, neither the majority’s opinion nor the briefs setforth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard. . . .

The majority is left with the word of prison officials insupport of its contrary proposition. And though that wordis important, it cannot be sufficient.

And, of course, Breyer cites experts!

Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy,” Brown v. Plata, 563 U. S. ___, ___ (2011) (slip op., at 43)—has promulgated a standard that forbids suspicionless strip searches.


Read More