Jun 29, 2015

5 “Disrespectful Dissents” This Term – Scalia had 4, Sotomayor had 1

Commenter JusticeVC notes that this term there were 5 disrespectful dissents–that is a dissent not preceded by “respectfully.”

Justice Scalia had four.

Alabama Legislative Black Caucus v. Alabama:

By playing along with appellants’ choose-your-own-adventure style of litigation, willingly turning back the page every time a strategic decision leads to a dead-end, the Court discourages careful litigation and punishes defendants who are denied both notice and repose. The consequences of this unprincipled decision will reverberate far beyond the narrow circumstances presented in this case.

Accordingly, I dissent.

Zivotofsky v. Kerry:

Under the Constitution they approved, Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem.

I dissent.

Los Angels v. Patel:

Nevertheless, the Court today concludes that Los Ange- les’s ordinance is “unreasonable” inasmuch as it permits police to flip through a guest register to ensure it is being filled out without first providing an opportunity for the motel operator to seek judicial review. Because I believe that such a limited inspection of a guest register is emi- nently reasonable under the circumstances presented, I dissent.

But in fairness to Nino, he also repsectfully dissents at the end.

Because I believe that the limited warrantless searches authorized by Los Angeles’s ordinance are reasonable under the circumstances, I respectfully dissent. 

King v. Burwell:

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medi- caid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by liti- gants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

I dissent.

As JustinVC notes, Nino’s Obergefell dissents was most certainly not respectful, but he didn’t close with the conventional “I dissent.”

Justice Sotomayor had one with Glossip v. Gross:

The contortions necessary to save this particular lethal injection protocol are not worth the price. I dissent.


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Jun 29, 2015

Ted Cruz on his year with CJ Rehnquist

Following up from my previous post about Cruz’s internet-porn-watching party with Justice O’Connor and Rehnquist, Sen. Cruz has a lengthy article at Politico concerning his year at the Court.


Hubbs zings Powell:

Justice Lewis Powell, for example, was a colonel in World War II. “You know,” he once quipped to the chief, “I outrank you.” Without missing a beat, Rehnquist replied, “Not anymore.”

On the interview process:

I soon learned why Rehnquist spent so little time interviewing his law clerks. He was one of the most brilliant human beings on the planet. He could have done the job with his eyes closed and without a single assistant.

I met him in his spacious chambers at the back of the Supreme Court Building, right behind the courtroom. A tall man with thinning black hair, long sideburns and oversize glasses, he ambled up and offered me a chair. The chief wore big wide ties with floral patterns and Hush Puppies.

With his first question, I knew that my recommendation strategy had paid off. “You know, I’ve got two recommendations here from Charles Fried and Alan Dershowitz,” he said, in his deep, gentle voice. Rehnquist knew as well as anyone how diametrically opposed the two men were. He had a slight grin. “So, I wonder, how on earth is that possible?”

“Maybe one of them was confused,” I said. He laughed.

I told him a little about my background. When I described my father’s past, fighting in the Cuban Revolution, it piqued his interest. Afterward, when I recounted the interview to my dad, I kidded my father by telling him that I had described him as a communist guerrilla for Castro. My dad was horrified.

“I was never a communist!” he said indignantly. He was flabbergasted that the chief justice of the United States might have this mistaken impression.

As we continued talking, Rehnquist asked a question that seemed of great importance to him.

“Would you be willing to play tennis with me and my other clerks?”

He was, as I had learned, a devotee of the game. In fact, many of the clerks he tended to favor were skilled tennis players or even all-American athletes.

“Sure, sounds like fun,” I replied. I wanted the job badly, though I had to be honest. “I should tell you I’m not very good.”

Rehnquist laughed at what he apparently took for false modesty. What he didn’t know, but would soon learn, was that “not very good” was a boast bordering on hyperbole.

Apparently Souter ate his yogurt with fruit on the weekend:

David Souter had been appointed by President George H. W. Bush but fairly quickly became one of the more liberal justices. Raised in rural New Hampshire, he lived a simple, spartan life. When he hosted the clerks for lunch, he explained that each day he would have a bowl of yogurt. On the weekends he would have a bowl of yogurt, but with fruit.

I remember thinking, “He prefers it with fruit.” And it was interesting to me that he chose to deny himself that pleasure during the week.

Breyer apparently talks too loud about cases in public:

Justice Stephen Breyer, a 1994 Clinton appointee, can be delightfully charming. He did have a habit of speaking quite loudly about pending cases—in places like public restaurants. On occasion that would cause his clerks considerable consternation.

He has a great story about Justice Thomas, involving Notre Dame LawProf Rick Garnett:

With his welcoming demeanor and deep, hearty laugh—imagine Santa Claus bellowing “ho, ho, ho”—Clarence Thomas has carried out dozens of acts of kindness on the court, the kind never reported by the mainstream media. An illustrative story involved one of my co-clerks, Rick Garnett, who had worked the previous year as a clerk in Little Rock, Arkansas. There he and his wife had befriended and tutored a young African-American boy named Carlos. The boy had never left Arkansas before, but Rick and his wife paid to fly him up to D.C. Rick emailed all nine chambers at the court, saying that this young boy would be in town, and asking if any of the justices would be willing to meet with him. Two offices responded—those of Justices Ruth Bader Ginsburg and Clarence Thomas. Ginsburg is an incredibly talented lawyer and jurist, and it was very kind of her to meet with Carlos, but her prim demeanor is that of a legal librarian, and so it was difficult for her and the young boy from Arkansas to connect. Clarence Thomas understood the world that Carlos had come from.

At the end of their two-hour conversation, Carlos observed that Thomas was a Dallas Cowboys fan. (Thomas had a framed picture of himself with quarterback Troy Aikman in his office.) The kid was very impressed—that was way cooler than the Supreme Court—and Thomas noticed. So Thomas rose from his chair, walked to his desk, and showed the boy a Super Bowl ticket, encased in Lucite, and signed by Cowboys running back Emmitt Smith. He handed the ticket to the young man.

“I’m going to give you this,” Thomas said. “But I want you to promise me that you will get A’s in school next year.”

The young man, astonished and wide-eyed, nodded in agreement.

This story of the Chief and Ted taking a stroll down First Street is perfect:

The court heard about 80 cases during the term I clerked, and each of the chief’s clerks was responsible for knowing about one-third of them. It was a lot to juggle in your head without notes. And the way the chief justice liked to prepare for oral arguments could be disconcerting. He could come by our desks at any time to talk about a case.

“Ted,” he might say, “are you ready to discuss Smith v. Jones?”

We knew what came next. I’d say, “Yes, Chief,” and get up and go outside for a walk with him. Without any notes at my disposal we’d discuss that case’s merits.

As we strolled down First Street across from the U.S. Capitol, he’d say things like, “So, Ted, what did you think of the argument in footnote seventeen of the petitioner’s brief? I didn’t find it very persuasive.”

“Uh, I agree, Chief,” I’d respond, struggling to remember the footnote he was citing.

And tourists asked the Chief to take their pictures in front of the Court:

We would do laps around the building. A kindly looking gentleman, often wearing a cap, Rehnquist was frequently stopped on the street by tourists asking him, a passerby, to take photographs of their families standing in front of the Supreme Court or the Capitol. He was so down-to-earth, so approachable, that he could be as comfortable with a plumber as he could a poet. And he was hardly ever recognized.

Each time he was stopped to take a photo, the chief would smile and say gamely, “Sure.”

To this day, hundreds of people have had their picture taken in front of the Supreme Court by the chief justice of the United States and never knew it. That made him chuckle.

The Chief’s lunch was not quite as spartan as Souter’s but pretty bare.

He was not a man of airs. For lunch, he would usually order the same thing—a simple menu of a cheeseburger and a Miller Lite, or as he called it, “a Miller’s Lite.” And he’d smoke a single cigarette. His townhome in Arlington, Virginia, was modest; there were no signs of pretense or grandeur. Sometimes he had the clerks over to play charades. My favorite memory of him remains the time he grabbed a slip of paper, fell to the ground, and lay on his belly pantomiming firing a rifle. “Pow! Pow!” he called out. (No one told the chief that you didn’t talk in charades.) His charade was “All Quiet on the Western Front.”

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Jun 29, 2015

In the biggest cases of the term, the Liberal Justices never voted with the Conservative Justices

Tom Goldstein offers a quick analysis of the four liberal justices, four conservative justices, and Justice Kennedy.

I also considered the 10 cases I consider most significant.  Of those, the left prevailed in 8.  Those included the first 7 of the Term.  (I mention the early cases to give a sense of how the results must have appeared inside the Court as the Term went along.)  The right prevailed in 2, both in the final sitting of the Term.

In the 10, no Justice on the left voted with the right; the four Justices on the left voted together in every one of those cases.  A Justice on the right voted with the left 4 times.  Those votes determined the outcome in 2 cases, because Justice Kennedy voted for the more conservative result.

Note that the analysis above is skewed against finding the Term particularly liberal by treating Justice Kennedy as the Court’s “center.”  That is true ideologically, but he is certainly a conservative.  If he were characterized that way for my analysis, the number of defections to the left would be much higher.

By that measure, a Justice on the right voted with the left 25 times (compared with 3 times the reverse happened).  That occurred in all 10 of the 10 major cases (because no Justice on the left voted with the right in any of those cases), and determined the outcome in all of them.

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Jun 29, 2015

Ted Cruz Watched Hard Core Porn With CJ Rehnquist and J. O’Connor for Reno v. ACLU

During the October 1996 term, Justice O’Connor, joined by Chief Justice Rehnquist, concurred in part and dissented in part in Reno v. ACLU.

I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a “zoning law” that passes constitutional muster.

In his new book, Sen. Ted Cruz, who clerked for the Chief, that the two Justices apparently asked a librarian to show them how easy it was to find hardcore porn on the internet. The Washington Post has the report:

Cruz served as a law clerk to then Supreme Court Chief Justice William Rehnquist. One day, he was standing behind Rehnquist and Justice Sandra Day O’Connor.

“We were in front of a large computer screen gazing at explicit, hard-core pornography,” Cruz wrote.

The reason? The court was considering a case challenging a law that regulated online porn. The clerks were older and not well-versed in the Internet, so court librarians set up a tutorial for the justices and their clerks on how easy it was to find porn online. Cruz watched as the librarian typed in the word “cantaloupe,” though it was misspelled.

“A slew of hard-core, explicit images showed up onscreen,” he wrote. “As we watched these graphic pictures fill our screens, wide-eyed, no one said a word. Except for Justice O’Connor, who lowered her head, squinted slightly, and muttered, ‘Oh, my.'”

Sandra Day Oh My.

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Jun 29, 2015

Thoughts on the Texas Attorney General’s Decision Concerning Same-Sex Marriage Licenses

Yesterday, Texas Attorney General Ken Paxton issued an opinion concerning whether individual state officers may decline to issue marriage licenses to same-sex couples,. Here is a summary of the conclusions:

County clerks and their employees retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses. The strength of any such claim depends on the particular facts of each case.

Justices of the peace and judges similarly retain religious freedoms, and may claim that the government cannot force them to conduct same-sex wedding ceremonies over their religious objections, when other authorized individuals have no objection, because it is not the least restrictive means of the government ensuring the ceremonies occur. The strength of any such claim depends on the particular facts of each case.

Many in the media have characterized this opinion as an end-run around the Court’s decision in Obergefell. I read it as much, much more narrow, in terms of a staffing directive to provide religious accommodations under the Texas Religious Freedom Restoration Act.

In Texas, marriage licenses must be issued by (elected) County Clerks, and a license can be obtained by any county clerk regardless of residence. As you may expect, in all County Clerk offices, there is more than one person working. The County Clerk, can delegate his or her authority to Deputy County Clerks and other staff.

The Family Code provides that the “county clerk shall . . . execute the clerk’s certificate on the application” if the application complies with the statutory requirements. Id. § 2.008(a). But the county clerk may delegate this duty to others. Under the Local Government Code, a deputy clerk “may perform all official acts that the county clerk may perform.” TEX. Loe. Gov’T CODE ANN. § 82.005 (West 2008). Thus, under state law, a county clerk may delegate duties to deputy clerks, and deputy clerks have the authority but not the mandatory duty to perform the acts of the county clerk

The scope of the accommodation provided under the Texas Religious Freedom Restoration Act is not whether an entire clerk’s office can decline to issue marriage license, but whether individual employees in that office can decline to participate in that job function through a religious accommodation.

A county clerk has a statutory right to delegate a duty to a deputy clerk, including the issuance of same-sex matTiage licenses that would violate the county clerk’s sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government’s least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.

Under state law, the Attorney General concluded that a county clerk can determine that a way to avoid infringing on rights protected by RFRA would be to exempt certain employees from issuing same-sex marriage licenses. In any other context, this would be a simple reassignment employee functions, but in light of the salience of this issue, it takes on a much greater significance.

Consider this statement from the Bell County Clerk:

Under state law, Texas Family Code Section 2.008(a), states that County Clerks “shall” issue marriage licenses to conforming applications. Based on state law, revised forms from the Vital statistics Unit, and Attorney General Opinion KP-0025, the Bell County Clerk’s Office will issue marriage licenses to conforming applications, as now defined by the United States Supreme Court. Reasonable accommodations will be made for Deputy Clerks that have religious objections to participating in the issuance of such licenses.

The clerk may not like it, but the office will issue licenses. Individual deputy clerks can seek the accomodation.

The AG’s opinion cites other examples, including exempting pharmacists from issuing drugs that violate conscience–even though access such contraceptions is constitutionally protected.

Courts have balanced similar competing rights in other contexts, and I believe they would likely do so here.7 See, e.g., Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172, 1188-93 (W.D. Wash. 2012) (holding that a state law mandating the issuance of drugs violated pharmacists’ religious beliefs, and that refusing to issue the drugs and referring to another pharmacist was a sufficient practice);

This religious accommodation only becomes a constitutional problem if no one is willing to offer same-sex couples a marriage license–and the AG acknowledges this.

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

It would also violate state law for a clerk to issue no marriage licenses at all.

I f instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk “shall” issue marriage licenses to conforming applications. TEX. FAM. CODE ANN.§ 2.008(a) (West 2006).

In short, so long as a couple can receive the license from a county clerk, there is no constitutional violation. I can’t imagine if a couple is delayed 15 minutes, and then gets the license, a court would grant an injunction. But as my colleague Howard Wasserman noted by email, there could be a suit for $1 nominal damages against the Clerk. And the clerk would be in trouble if no one in her office was able to issue licenses, or did so in such a manner to unduly delay its issuance. (Although, as someone who once waited nearly 3 hours to receive a driver’s license in Texas, I think normal bureaucratic delays should be considered part of the calculus, so long as they are not deliberate).

Under state law, Justices of the Peace and Judges are not required to perform marriage ceremonies at all.

Two aspects of this legal arrangement bear discussing. First, justices of the peace and judges are joined on the list o f those authorized to conduct marriage ceremonies by four other types of persons not employed by state or local government. Second, as previous Attorney General opinions have demonstrated, judges and justices of the peace have no mandatory duty to conduct any wedding ceremony: “Although the Family Code authorizes justices of the peace and county judges, among others, to conduct a marriage ceremony, they are not required to exercise that authority ….”8

If a same-sex couple asks a Judge to perform the ceremony, and the judge declines, I don’t think a claim lies under state law. And nothing in Obergefell said that states have to change their law so that anyone who can perform a same-sex ceremony has to. Again, there may be some delay until the couple goes to the clerk’s office. But I don’t see how a claim can exist against the state judge. Also, I note that under state law, there are no prohibitions on discrimination on the basis of sexual orientation.

In short, the Texas AG’s opinion is far more narrow than some would like it to be. Offices that refuse to issue licenses would be subject to damages. But so long as a license can be issued in a timely manner, I don’t see any couples suffering a cognizable injury.

Update: German Lopez has a thoughtful piece at Vox that analyzes this issue without hyperbole, quoting me and Doug Laycock.

“The conscientious objector clerk and the clerk who is willing to issue the license need to just trade places,” Douglas Laycock, an expert on religious freedom laws at the University of Virginia School of Law, wrote in an email. “I don’t think the county could require the same-sex couple to go stand in a different line, or come back on a different day.”

The problem arises when no one in a county clerk office is willing to marry a same-sex couple. In that case, the county would have to find a way to accommodate the couple or risk violating the Supreme Court’s ruling.

South Texas College of Law professor Josh Blackman reached similar conclusions in a blog post. “[T]he clerk would be in trouble if no one in her office was able to issue licenses, or did so in such a manner to unduly delay its issuance,” he wrote.

Update: My colleague Howard Wasserman writes a post, noting that I “basically ha[ve] it right” subject to a few caveats–I agree with each of his caveats.

First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell–does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.

Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk’s office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?

Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say “No licenses to same-sex couples from noon-1 p.m.”

Update: The Hood County clerk has refused to issue marriage licenses to same-sex couples.

“I’m standing up for my religious liberty,” said Hood County Clerk Katie Lang, who said her office would not give out same-sex marriage licenses on religious grounds. “I do believe that marriage is for one man and one woman because it did derive from the Bible.”

After the decision Friday, some county officials said they would wait to hear from state Attorney General Ken Paxton, who issued a written opinion Sunday saying clerks with religious objections to same-sex marriages can refuse to issue those licenses. But if they do so, he wrote, they might face fine or lawsuits.

Paxton said pro bono lawyers would be ready to defend those who refuse, noting “the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty.” Lang said that after reading Paxton’s opinion, she chose to face possible legal action.

“I could get fined and I could get sued,” she said, “but you could get sued for anything.”

As of Monday morning, no couples had asked for a same-sex marriage license from Hood County, Lang said.

Yes, she will get sued, and she will be held liable in her personal capacity for violating clearly established law.

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Jun 29, 2015

Panel for Texas v. United States: King, Smith, and Elrod

The panel for Texas v. United States, the DAPA challenge, has been announced. Judges Smith and Elrod who were on the motions panel that ruled in favor of Texas will be joined by Judge King.

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Jun 29, 2015

Talking about #SCOTUS on Huffington Post Live

You can watch it here.

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Jun 29, 2015

Alito Faults Sotomayor For Application of Marks Rule

In a footnote in Glossip v. Gross, Justice Alito faults Justice Sotomayor for failing to properly apply the ever-popular “Marks Rule” with respect to Baze.

JUSTICE SOTOMAYOR’s dissent (hereinafter principal dissent), post, at 24–25, inexplicably refuses to recognize that THE CHIEF JUSTICE’s opinion in Baze sets out the holding of the case. In Baze, the opinion of THE CHIEF JUSTICE was joined by two other JUSTICES. JUSTICES SCALIA and THOMAS took the broader position that a method of execution is consistent with the Eighth Amendment unless it is deliberately de- signed to inflict pain. 553 U. S., at 94 (THOMAS, J. concurring in judg- ment). Thus, as explained in Marks v. United States, 430 U. S. 188, 193 (1977), THE CHIEF JUSTICE’s opinion sets out the holding of the case. It is for this reason that petitioners base their argument on the rule set out in that opinion. See Brief for Petitioners 25, 28.

Justice Sotomayor replies:

Baze held no such thing. In the first place, the Court cites only the plurality opinion in Baze as support for its known-and-available-alternative requirement. See ibid. Even assuming that the Baze plurality set forth such a requirement—which it did not—none of the Members of the Court whose concurrences were necessary to sustain the Baze Court’s judgment articulated a similar view. See 553 U. S., at 71–77, 87 (Stevens, J., concurring in judg­ ment); id., at 94, 99–107 (THOMAS, J., concurring in judg­ ment); id., at 107–108, 113 (BREYER, J., concurring in judgment). In general, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U. S. 188, 193 (1977) (internal quotation marks omitted). And as the Court observes, ante, at 14, n. 2, the opinion of JUSTICE THOMAS, joined by JUSTICE SCALIA, took the broadest position with respect to the degree of intent that state officials must have in order to have violated the Eighth Amendment, concluding that only a method of execution deliberately designed to inflict pain, and not one simply designed with deliberate indifference to the risk of severe pain, would be un­constitutional. 553 U. S., at 94 (THOMAS, J., concurring in judgment). But this understanding of the Eighth Amendment’s intent requirement is unrelated to, and thus not any broader or narrower than, the requirement the Court now divines from Baze. Because the position that a plaintiff challenging a method of execution under the Eighth Amendment must prove the availability of an alternative means of execution did not “represent the views of a majority of the Court,” it was not the holding of the Baze Court. CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 81 (1987).


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Jun 28, 2015

Apparently I’m an example of “Where you go is not who you’ll be”

New York Times Op-Ed Writer Frank Bruni has published a new book titled, “Where You Go Is Not Who You’ll Be: An Antidote to the College Admissions Mania.” The thrust of the book is that your college diploma does not define your success. To prove his point, Bruni tries to find people who are accomplished by didn’t go to a top school. He combs through the 2014 Forbes “30 under 30″ list, and found “no shortage of graduates of schools that aren’t especially selective. There were several alumni of my alma matter, Penn State.” Gee thanks.

It continues:

One, Josh Blackman, was a law professor who had written a book about the constitutional challenge to Obamacare and had founded FantasySCOTUS, a popular Supreme Court online fantasy league and prediction market.

I went to Penn State for College and George Mason for law school. Neither degree helped me much in obtaining my current job. In recent years, my undergraduate institution has become something of a punch line, beyond its usual academic reputation. My Mason diploma, matched with my conservative and libertarian views, probably inhibited my academic aspirations. (Although the first-rate legal education I received at GMU was worth far more than an Ivy League diploma). I do find often that when someone meets me, they are surprised, or even disappointed that I went to Penn State and GMU, as if there is some kind of mismatch between their expectations and my resume. I don’t let it bother me. I am much, much more proud of my accomplishment since graduation than anything my diploma says. So sure. Where I went did not define who I am.

In case you’re interested, here is the full page:


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Jun 27, 2015

Who Will Write The Remaining Three Opinions Since AMK (Probably) Lost Ayala Majority?

In what will probably be the most anticlimactic final day of the term in recent memory, the Court has three outstanding decisions–Arizona St. Legis. v. Az. Ind. Restricting Commission, Michigan v. EPA, and Glossip v. Gross. Based on Kedar Bhatia’s ever-helpful Opinion by Sitting chart, we can speculate about who will write what.

Arizona Leg. is the only outstanding decision from the February sitting. From that sitting, Justices Kennedy and Ginsburg have written nothing. Odds are, it is either Kennedy or Ginsburg with the opinion. But, whoever does not write potentially lost a majority opinion from that sitting to one of the Justices who wrote two opinions. Writing two opinions were Scalia (Din and Abercrombie), Breyer (Coleman and Tibble), and Alito (Clark and Davis). There were two 5-4 decisions among those: Davis v. Ayala and Kerry v. Din. I think Justice Kennedy was originally assigned the majority opinion in Kerry v. Din, but lost Scalia, Roberts, and Thomas. Only Justice Alito concurred with AMK. Recall that Scalia, Roberts, and Thomas issued a much broader opinion that implicated the SSM cases, while AMK resolved it on much narrower grounds. It’s possible Nino’s circulated concurring opinion broke off the votes of Roberts and Thomas. If this is right then Kennedy lost the majority in Din, and Ginsburg was assigned the Arizona Legislative Case. That could explain why this fairly routine case was hanging around so long. Based on the FantasySCOTUS predictions, it looks like RBG, and at least four other Justices, will vote to affirm. So that’s one predictions.

The only outstanding case from the March sitting is Michigan v. EPA. The only Justice who has not yet written from this sitting is Justice Scalia–all of the others have written one opinion–so it is safe to assume that Justice Scalia will write that case. Not so fast, says Ian Millhiser. He notes that it “is unlikely that Scalia will write a ninth opinion when many justices haven’t even written an eighth opinion.” But, let’s assume that Kennedy lost the opinion in Din v. Kerry, and Scalia was not originally assigned it. Michigan v. EPA was argued on 3/25 and Kerry v. Din was argued on 2/23. It’s possible that when the opinions were assigned for Michigan v. EPA, the Kerry v. Din opinion had not yet flipped. So I’m not so sure we have to worry about 9 assignments. Scalia would still have 8 assigned opinions if he writes Michigan v. EPA, which would match him up with Justice Breyer who also has 8. If RBG has the Arizona case, she will be at 7. If Scalia has Michigan v. EPA, then it is almost a certain reverse. Indeed, FantasySCOTUS is showing a 5-4 reverse.

The final outstanding case from the April sitting is Glossip  v. Gross, the death penalty case. Forgetting for a moment the numbers, I can’t remember the last 8th Amendment case that *wasn’t* written by Justice Kennedy. And, as it turns out, the math lines up to give AMK this decision. Since there were only 7 cases argued during this sitting, two justices will have to be left out. With no writings from April are Kennedy, Ginsburg, and Sotomayor. Sotomayor already has 7 majority opinions. GInsburg has 6, but with the Arizona case, she will have 7. Kennedy only has 6, but with his lost opinion in Kerry v. Din, it is really 7. Glossip will give him 8, tying him with Breyer and Scalia. So 3 of the Justices would have 8, and 6 would have 7 assigned opinions. That is a little top-heavy, but is in keeping from past years. FantasySCOTUS is showing a strong vote for AMK to affirm, in a 5-4 decision.

So my forecasts–RBG writes the majority in Arizona voting to affirm, Scalia writes the majority in EPA to reverse, and Kennedy writes the majority in Glossip to affirm. These predictions are worth what you paid for. As an aside, I love this #SCOTUSSoduku


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Jun 27, 2015

Justice Scalia Dissent Singalong

After what must have been a pretty depressing week for Nino, enjoy this Funny or Die video, putting Justice Scalia’s dissents from King and Obergefell to music.

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Jun 27, 2015

“Josh Blackman ruefully explained … the decision effectively seemed to elevate the ACA into a kind of ‘untouchable super-statute that is beyond reach.'”

In the New Republic, Simon Lazarus notes that after King v. Burwell, the Chief Justice is in charge. He quotes a comment I made on the King v. Burwell FedSoc conference call a few hours after the ruling (in truth, that day was a blur, and I barely remember saying it!).

Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law.

Alas, the Chief has signaled that we’re done here. I expect the D.C. Circuit to promptly dispose of the origination clause challenge. It has been pending for about 8 months–I think they were holding it for King v. Burwell. There’s no way there are four votes for certiorari now, regardless of the merits.

Jack Balkin in a characteristically astute post notes that the ACA is now part of the “social contract” and is a “framework statute.”  I don’t know if this was true after NFIB. Arguably, the Chief’s decision could be characterized as one of constitutional avoidance. But King v. Burwell had no constitutional overtones, yet the Chief approached it in a similar manner to save the law again.

As I wrote in essay on CaseText, the Chief Justice has introduced the “Obamacare Canon.” It provides that judges from now on should put a thumb on the scale of the ACA to avoid disrupting health care markets. After all, it’s too big to fail! Until the Court’s other decision this week is relied on to expand the notion of positive liberty to include a dignified right to health care.


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Jun 27, 2015

Chief Justice Roberts’s Once Again Saves The ACA with the “Obamacare Canon”

At CaseText (a cool new legal research site), I published an essay on King v. Burwell, titled Chief Justice Roberts’s Once Again Saves The ACA with the “Obamacare Canon.” I draw parallels between the Chief’s saving construction in NFIB v. Sebelius and his decisive thumb on the scale of the state in King v. Burwell as evidence of a sui generis principle that Justice Scalia labelled as “The Affordable Care Act must be saved.” Or, as I refer to it, the “Obamacare Canon.”

Here is a snippet:

Unlike NFIB, King v. Burwell was a case of statutory interpretation rather than of constitutional interpretation. The question presented was whether the federal government could pay subsidies in ACA exchanges “established by the state[s].” The first 20 pages of the Chief’s offered a workmanlike exercise in how to read a statute in context, and why the literal text didn’t necessarily control. I didn’t find it persuasive, but had the opinion ended there, I would have been only slightly disappointed.

Then it took a sharp turn for the worse. On the penultimate page, the Chief acknowledged that the “arguments about plain meaning . . . are strong.” (You would think this would go on the first page, not at the end). Then, in the final paragraph , we see what is at the heart of the decision, and what I suspect was driving his “saving construction” in NFIB.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

This is the dicta that will sink a thousand Obamacare ships.

Even though the plain text of the statute was “strong,” the Chief Justice was willing to put a thumb on the government’s scale for one simple reason: the challengers’ side of the scale would not “improve health insurance markets.” It’s as if the Chief stopped reading at Title I of the Act, which says: “Qualify, affordable health care for all Americans.” But then the law goes on for another 1,000 pages, as it balanced: (1) expanding access to health care, (2) keeping costs low, while (3) respecting state sovereignty. The never-ending ACA (that no one read) was reduced to a bumper sticker (or to borrow a phrase from Justice Scalia’s other recent dissent, a “fortune cookie”).

It is unmistakeable in my mind that similar reasoning motivated the Chief’s decision in NFIB. Had the Court invalidate the individual mandate–and left the rest of the ACA intact–it would have created an adverse selection death spiral, as healthy people would lack the incentives to enter markets, and prices would skyrocket. In King, had the subsidies been blocked in 34 states that did not build an exchange, a similar death spiral could have been triggered (assuming Congress didn’t fix it). In both cases, ruling against the federal government would not have “improve[d] health insurance markets.”

The modus operandi of the Chief Justice is that Obamacare–or as Justice Scalia called it “SCOTUScare”–is special. A Justice who professes such fidelity to the rule of law has one set of rules for normal laws–such as the Voting Rights Act, which he had no problem gutting inShelby County v. Holder–and a different set of rules for super laws. Justice Scalia’s dissent sums up the reasoning well:

“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

Twice the Chief Justice has been confronted with winning arguments–a constitutional argument and a statutory argument. Twice he rejected those arguments because he was motivated by his self-imposed Hippocratic oath: “do no harm” to Obamacare. And twice, he has rescued the law from the brink. This deference is not based on the proper role of a judge, but on the Chief Justice’s determination that Obamacare’s aspirations are more important than what the law, or the Constitution actually says. Alas, the buck stops here. The Chief sent a clear message to the lower courts–if there are any challenges to the ACA, apply the Obamacare canon of construction, and move on. It is unlikely that the Court would even bother accepting any future fundamental challenges to the ACA. The buck stopped here.

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Jun 26, 2015

Preliminary Injunction Filings in Defense Distributed v. U.S. Department of State

Here are all of the filings concerning the Plaintiffs’ motion for a preliminary injunction in Defense Distributed v. U.S. Department of State. The federal district court in Austin will be holding a hearing on the preliminary injunction on July 6.

Plaintiffs’ Motion for Preliminary Injunction

Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

Plaintiffs’ Reply to Defendants’ Opposition

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Jun 26, 2015

I Dream of #SCOTUS

Last night, I had a dream that I was standing in the streets of Washington, D.C. for decision day today. The streets were teeming with people, and I think I was near the Capitol South Metro to give you a sense of how far I was. When the session began, some guy on a loudspeaker was calling out the play-by-play from SCOTUSBlog. But then he went quiet, and I could tell he was stalling and making stuff up. I pull out my laptop, and I see that SCOTUSBlog’s website was down and we had no idea what was going on inside the Court.

This may or may not happen today.

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Jun 25, 2015

My New Editorial in USA Today – “Obamacare Is No Longer Just A Law.”

The USA Today has published my editorial on King v. Burwell. My proposed title, “Obamacare Is No Longer Just A Law,” sums up my thinking well.

Praising the Affordable Care Act, President Obamasaid recently, “Five years in, what we are talking about … is no longer just a law.” Chief Justice John Roberts agrees.

The Supreme Court’s decision in King v. Burwell on Thursday did not simply hold that the phrase “established by the state” means “established by anyone.”

Rather, it signaled that the text of the 900-page law is now subordinate to what the court sees as its unimpeachable purpose: “to improve health insurance markets, not to destroy them,” regardless of the costs. If at all possible, “we must interpret the Act in a way that is consistent with the former, and avoids the latter,” the chief justice wrote. Alas, with that goal in mind, it is always “possible” to save Obamacare from itself.

In the court’s 2012 decision in NFIB v. Sebelius, the chief justice recognized that the law’s individual mandate requiring people to buy health insurance was unconstitutional. But this couldn’t be right, because allowing the uninsured to free ride on taxpayers would not “improve health insurance markets.” So, through a “saving construction,” the chief justice rewrote the mandate as a “tax” and upheld the law.

In King v. Burwell, the chief justice found that the “plain meaning” of the text — that “state” means “state” — was a “strong” argument. But this couldn’t be right, because limiting subsidies to state exchanges would not “improve health insurance markets.” So, once again, the chief justice rewrote the law, this time to provide subsidies everywhere.

After two Supreme Court decisions and countless executive orders, the Affordable Care Act is indeed no longer “just a law.” It has morphed into a judicial-executive chimera, bearing less and less resemblance to the bill Congress enacted.

Chiseled into the marble ensconcing the Supreme Court is the phrase: “Equal justice under law.” In King v. Burwell, this bedrock principle was abandoned. As Justice Antonin Scalia laments in his dissent, the normal rule of law now yields to the “overriding principle of the present Court: The Affordable Care Act must be saved.”

I was limited to 350 words, which were due at 4:00 E.T., so it was tight. I will expand on this topic in due time.

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Jun 25, 2015

Hugs At One First Street

From Mark Walsh’s excellent “View from the Court.”

After the Justices have disappeared behind their red velvet curtains, U.S Solicitor General Donald B. Verrilli, Jr., who argued the Obama administration’s case in King (and argued as an amicus for the position that won in the housing case), smiled broadly.

He first hugged his principal political deputy solicitor general, Ian H. Gershengorn. They exchanged backslaps as they embraced.

Verrilli then did the same with Edwin S. Kneedler, a career deputy solicitor general who, like Gershengorn, was on the government’s brief in King with the Solicitor General.

That’s not something one sees very often just steps from the Supreme Court bench.

Update: More from Tony Mauro:

So when the session ended, the lawyers from the solicitor general’s office jumped up and exchanged hugs and backslaps—not typical for staid lawyers clad in morning coats. Among those spotted were deputies Edwin Kneedler, Michael Dreeben, Ian Gershengorn and Malcolm Stewart.


Kudos to Solicitor General Verrilli for pulling out another two victories. As I note in the WSJ Law Blog, the Court rejected the SG’s arguments about the “term of art” and Chevron deference, but follow the general consensus view advanced by Eric Segall, Nick Bagley, and others about the meaning of “such exchange,” and the incongruities if a federal exchange has zero people.

Update: Here are Slyvia Burwell’s reactions:

“It was very emotional,” Health and Human Services Secretary Sylvia Mathews Burwell said quietly, pausing for several seconds.

One day earlier, Chief Justice John Roberts announced the Obama administration could legally hand out healthcare subsidies to people in all 50 states — striking down the law’s biggest legal threat in three years. The decision also handed Burwell a victory in the biggest battle of her term so far.

As the justices were reading their opinions Thursday morning, Burwell said she was in her office reading the livestream on SCOTUSblog.com as she tried to work on a department memo on a separate screen.

“I got a little distracted,” she said.

When she saw the words “HEALTHCARE” flash across the screen, she said, “You knew that this was it.”

She got up and walked — briskly — down the hallway of the department’s Humphrey Building office, just blocks from the Capitol, toward the room where her team was gathered.

“As I was going down the hall, I heard a cheer,” she said.

But before she started relishing the good news, she made her team triple-check the decision. Just three years ago, when the court ruled in favor of ObamaCare, the decision had been initially reported as a decision striking down the healthcare law.

“I’m like, ‘Are we sure?’ ” she said with a laugh, joking about her “anal retentiveness.”

For the nearly nine months since the Supreme Court announced that it would take up the case,King v. Burwell has dominated conversations about ObamaCare across Capitol Hill.

About an hour after the administration won in court Thursday, Burwell was sitting in the Rose Garden to hear President Obama and Vice President Biden deliver their victory speech.

When asked Friday whether she had been concerned at all that the administration could lose the case, Burwell said she was most worried about the millions of families who may have lost their healthcare.

“It was my job and my responsibility, though, to make sure that we as a department were ready to communicate … and work with the states,” she said. “But it was just such a moment of — as I said — relief.”

In the White House, President Obama began celebrating almost instantly after learning of the decision from one of his aides.

And White House photographer Pete Souza has this post on Medium:

The President was in the middle of his daily briefing on Thursday when Brian Mosteller, the director of Oval Office operations, abruptly opened the door at 10:10AM.

Knowing a series of Supreme Court decisions were pending, I instinctively switched to my camera with a telephoto lens to zoom in on the President. Brian told the President that, in a 6–3 decision, the Court upheld a critical part of the Affordable Care Act, preserving affordable coverage for millions of Americans.

For one split second, the President’s face was blank as if he was trying to comprehend the news. He then reacted in jubilation.

The President wanted to seek out some other staff members. As he walked into the Outer Oval Office, Chief of Staff Denis McDonough was waiting for him. They exchanged hugs and fist-bumps.

The briefing soon resumed until the Vice President joined the meeting. He and the President exchanged congratulations.

White House counsel Neil Eggleston and Deputy Chief of Staff Kristie Canegallo interrupted the briefing to congratulate the President and to further explain the details of the decision.

As they were talking, I noticed that the clock in the Oval Office still read 10:10am. But it was actually almost 10:30am.

So, when the briefing finally ended, I asked Denis McDonough to come back into the Oval Office and showed him the clock stuck at 10:10am. I then showed him the back of my camera, where he could see the photo of the President first being told about the decision. The camera time read 10:10am.

What a coincidence on a historic day.




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Jun 25, 2015

“At this point, the Chief Justice has said we’re done here.”

My quote in the USA Today sums up my thinking about King v. Burwell:

“At this point, the Chief Justice has said we’re done here,” said Josh Blackman, a conservative legal blogger and professor at South Texas College of Law. “The battle over Obamacare isn’t over, but today the Chief Justice signaled it won’t go through the courts.”

And, on this point, President Obama and I (for once) agree:

Obama echoed that point Thursday morning. The Affordable Care Act, he said, “is here to stay.”

The USA Today will also publish a editorial I wrote tomorrow.


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Jun 25, 2015

King v. Burwell Federalist Society Podcast with Jonathan Adler and David Rivkin

You can download the Podcast here.

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Jun 25, 2015

The President’s Remarks on King v. Burwell

The President’s remarks at 11:34 a.m. (roughly 90 minutes after King v. Burwell was released) are available here. I will post some highlights.

Five years ago, after nearly a century of talk, decades of trying, a year of bipartisan debate — we finally declared that in America, health care is not a privilege for a few, but a right for all.

Over those five years, as we’ve worked to implement the Affordable Care Act, there have been successes and setbacks.  The setbacks I remember clearly.  (Laughter.)  But as the dust has settled, there can be no doubt that this law is working.  It has changed, and in some cases saved, American lives.  It set this country on a smarter, stronger course.

And today, after more than 50 votes in Congress to repeal or weaken this law; after a presidential election based in part on preserving or repealing this law; after multiple challenges to this law before the Supreme Court — the Affordable Care Act is here to stay.

This morning, the Court upheld a critical part of this law -– the part that’s made it easier for Americans to afford health insurance regardless of where you live.  If the partisan challenge to this law had succeeded, millions of Americans would have had thousands of dollars’ worth of tax credits taken from them.  For many, insurance would have become unaffordable again.  Many would have become uninsured again.  Ultimately, everyone’s premiums could have gone up.  America would have gone backwards.  And that’s not what we do.  That’s not what America does.  We move forward.

So today is a victory for hardworking Americans all across this country whose lives will continue to become more secure in a changing economy because of this law.

He touted the benefits of the law:

As the law’s provisions have gradually taken effect, more than 16 million uninsured Americans have gained coverage so far.  Nearly one in three Americans who was uninsured a few years ago is insured today.  The uninsured rate in America is the lowest since we began to keep records.  And that is something we can all be proud of.

He repeated points he had made last week before the Catholic Hospital Association.

The point is, this is not an abstract thing anymore.  This is not a set of political talking points.  This is reality.  We can see how it is working.  This law is working exactly as it’s supposed to.  In many ways, this law is working better than we expected it to.  For all the misinformation campaigns, all the doomsday predictions, all the talk of death panels and job destruction, for all the repeal attempts — this law is now helping tens of millions of Americans.

Again, this is “no longer about a law.”

Five years in, this is no longer about a law.  This is not about the Affordable Care Act as legislation, or Obamacare as a political football.  This is health care in America.

Looking forward:

And with this case behind us, let’s be clear — we’ve still got work to do to make health care in America even better.  We’ll keep working to provide consumers with all the tools you need to make informed choices about your care.  We’ll keep working to increase the use of preventive care that avoids bigger problems down the road.  We’ll keep working to boost the steadily improving quality of care in hospitals, and bring down costs even lower, make the system work even better.  Already we’ve seen reductions, for example, in the number of readmissions at hospitals.  That saves our society money, it saves families money, makes people healthier.

And he references “Unravel.”

So we’ve got more work to do.  But what we’re not going to do is unravel what has now been woven into the fabric of America.  And my greatest hope is that rather than keep refighting battles that have been settled again and again and again, I can work with Republicans and Democrats to move forward.  Let’s join together, make health care in America even better.

Drawing analogies to Social Security and Medicare.

Three generations ago, we chose to end an era when seniors were left to languish in poverty.  We passed Social Security, and slowly it was woven into the fabric of America and made a difference in the lives of millions of people.  Two generations ago, we chose to end an age when Americans in their golden years didn’t have the guarantee of health care.  Medicare was passed, and it helped millions of people.



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