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Adrian Vermeule had review last month in the The New Republic about Michael Gerhardt’s The Power of Precedent. Vermeuele has some interesting things to say about how the Court reached its decision in NIFB v. Sebelius:

If the Justices rarely overrule precedents, moreover, it may be because they rarely need to. It is the unusual case that cannot be put aside as irrelevant (“distinguished,” as lawyers say), at least with enough effort and ingenuity. In high-stakes cases, the effort is worth it, and the Justices have a crowd of ingenious clerks and counsel to help them make it all come out right. The health care opinions feature the most useful tool in the legal casuist’s toolbox, which is the introduction of an entirely new conceptual dimension unanticipated by the earlier precedents. “Sure, the cases say that Congress may regulate economic matters,” certain Justices reasoned, “but this is a regulation of economic inactivity rather than economic activity, and we’ve never said that was OK.” Welcome to the new paradigm.

It is this ability to introduce new and unforeseen dimensions that puts today’s precedent at the mercy of the future. Randy Barnett, a libertarian legal scholar and advocate—the genial Victor Frankenstein who stitched together and galvanized the activity/inactivity distinction—has suggested that even though the Affordable Care Act was upheld, the opinions handed his side a long-run victory by announcing a more restrictive set of Commerce clause doctrines. He lost the battle, but he might still win the war. But Barnett is too shrewd not to understand that judicial opinions by themselves cannot produce long-run victories. A future majority could uphold a future statute falling within the semantic scope of the rules that Barnett likes, by introducing some distinction that neither Barnett nor I can now anticipate. “Sure, the cases say that Congress may not regulate inactivity, but this is a regulation of a special type of inactivity, type X, and we’ve never said that wasn’t OK.” Whether the gambit will work will be a function of the then-prevailing circumstances, not of what some Justices said back in 2012. At the Supreme Court level, in hard cases at least, constitutional law is a game without legal rules; the rules are created and enforced by other means.

I like the image of Randy Barnett as Dr. Frankenstein. In the movie version of Unprecedented, I would do a cutaway to Gene Wilder, circa Young Frankenstein, playing Barnett, screaming atop the Supreme Court, amidst the bolts of lightning, screaming, “It’s Unprecedented. It’s unprecedented!”

So where do these precedents come from?

So what are the rules, and where do they come from? The precedents that mattered in the health care cases were not legal precedents in the narrow sense, the doctrinal rules set out in opinions and dissected at length in constitutional law treatises. What mattered were normatively colored expectations, held by public opinion and (derivatively) by public officials, about how political actors, such as the Justices, do and should behave. These expectations are shaped in part by past episodes—decisive showdowns between branches of government that are refereed by public opinion. The result of such a showdown is a constitutional “convention,” to use the term developed in Commonwealth legal and political theory. Some conventions have fuzzy boundaries and contestable significance, but by and large they are less malleable and more difficult to manipulate than judicially crafted rules, in part because of the high salience of the showdowns that create them and in part because they are typically less elaborate and technical.

One of the key aspects of this challenge was that Randy, and others, were able to shape public opinion, and this derivatively affected how public officials viewed the case. This is the process of popular constitutionalism that enabled the challenge to get to the finish line.

Joel Alicea earlier this summer wrote a fantastic piece in Public Discourse about the competing schools within conservative jurisprudence with respect to judicial restraint (I am just now able to digest it fully).

The old guard (Roberts in NFIB) take the view of Harlan’s dissent in Lochner.

 The reason Roberts does so is that his view of judicial restraint in NFIB v. Sebelius requires him to go to the limits of plausibility to save the statute. The dissenters, who express a different view of restraint, refuse to go that far.

The old conception of judicial restraint is evident in the chief justice’s theme that the Court is a legal—rather than political—body. At the beginning of his opinion, he is at pains to state: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” Then, at the conclusion, almost identical language: “But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” Like the legal conservatives of the 1970s, the Roberts opinion emphasizes the modesty of the judicial role and the importance of deferring to legislative majorities.

Just as the old theory of judicial restraint came under intellectual attack, so too does Roberts’ opinion for the Court—and for the same reasons. The problem with the old theory of judicial restraint, so the critique goes, is that in straining to sustain the will of today’s fleeting majority, a judge may ignore a fairly clear constitutional command from the original popular sovereign: the people who enacted the Constitution. The more recent idea of restraint sees the old way as a straightforward abdication of a judge’s duty to safeguard the limits of political power. Where a law is unconstitutional, it must be declared so, and the judge who contorts a law to save it is viewed as engaging in the very activism he disclaims.

The modern view of conservative judicial restraint is on display in the dissenting opinion.

 This contemporary view of judicial restraint is on full display in the joint dissent. The four justices lambast the Roberts opinion: “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching.” In a fascinating peroration, the dissenters appeal to the same values underlying the old version of judicial restraint, but they see it better expressed in their own willingness to jettison the healthcare law entirely:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

This conclusion sums up the thesis quite well:

The clash between the chief justice’s opinion and that of the joint dissenters is therefore best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.

Of course, Roberts and the joint dissenters have nuanced views on judicial restraint, and NFIB v. Sebelius does not define those views. Justice Scalia has long advocated judicial modesty and deference to legislative majorities, as seen in his dissent in Planned Parenthood v. Casey (1992), and the chief justice joined the Court’s opinion in Citizens United v. FEC (2010) in the face of heated political opposition. The point here is simply to identify the tensions within the conservative legal movement evident in the NFIB opinions.

The overwhelmingly negative response to the chief justice’s analysis shows just how far the movement has distanced itself from the old theory of restraint, embracing instead a view that cares less about how many statutes are struck down than about why they are invalidated. For the chief justice, his opinion is the epitome of judicial modesty. For the dissenters, it is the height of judicial arrogance. Roberts thinks his actions are compelled by respect for the coordinate branches of government; the dissenters see his actions as flouting the Constitution that called that government into being. And at this moment in the history of the conservative legal movement, Roberts stood alone.

I met Joel at a conference earlier this year. Keep an eye on him. He just started his second year of law school, but his level of thought on these topics is extremely advanced and sophisticated.

You can view the video live here at 4:50 EDT.

This is the second part of my series of posts about Charles Hauser, the Defendant in United States v. Carolene Products. My first post looked at how a federal court struck down the Filled Milk Act in 1972, three decades after the Supreme Court famously upheld it. The second post looks at Hauser’s subsequent criminal conviction in 1943, which was affirmed by the Supreme Court. The third post analyzes the Milnot factory built that straddles the Missouri-Oklahoma border. The final post analyzes a subsequent pardon signed by President Roosevelt in in 1945.

After the Supreme Court upheld the constitutionality of the Filled Milk Act in United States v. Carolene Products in 1938, Charlie Houser, President of the Carolene Products Company, and producer of Milnot, was not quite ready to give up, and continued shipping filled milk across state lines.

According to this article from the Litchfield, Illinois, News Herald (4/30/2004), “After weighing the risks carefully, [Hauser] decided to risk a tangle with the law. He began to test the filled milk product. He knew he  was right, morally, and decided to see things through.” Recognizing that Illinois did not have a Filled Milk law, he sold it to “independent food brokers” who sold it to grocers. Milnut was sold for 5 cents a can. Hauser, recognizing the demand, began to sell it in Missouri and Indiana, knowingly violating the federal law. Sales improved, and Hauser expanded distribution to the South and Southeastern United States.

During World War II, a shortage of coconut oil caused the company to change its primary ingredient to soybean oil, and the name from Milnut to Milnot.

However, eventually the Feds caught up with him.

In 1941, Hauser and his associate William Hartke were indicted on 8 counts of shipping filled milk in federal court in West Virginia, where his product was imported across state lines.

The indictment is in eight counts, charging eight separate shipments of filled milk from Warsaw, Indiana, to Clarksburg, Parkersburg, Weston, Morgantown, and Moundsville, in the Northern District of West Virginia. All these shipments were made between February and July of the year 1941, and totalled 5,800 cases, of 48 cans to the case.

The facts, as stated by the district court, were not in dispute. Hauser argued that the Filled Milk Act did not apply to his product, and alternatively that the Filled Milk Act was unconstitutional. The Court, citing the Supreme Court’s opinion from only 5 years earlier, found that the Filled Milk Act does apply, and alternatively that it is constitutional.

The opinion seems to suggest that they were not involved in this particular transaction:

This brings us to the question of the guilt of the individual defendants, Charles Hauser and William H. Hartke. In the first place, it is admitted by the Government, at least in its brief, that there is no evidence to show that either of the individual defendants personally made or even had knowledge of the eight specific shipments complained of in this indictment.

…

The individual defendants say that they should be acquitted because there is no evidence that they made the shipments of “Carolene,” or that they had personal knowledge that the precise shipments, alleged in the indictment, into the Northern District of West Virginia, were to be made or were, in fact, made. As noted above, Hauser was President of Carolene Products Company, and Hartke was Vice President

From the Petitioner’s brief to the Supreme Court, it seems that Hauser an Hartke were each sentenced to “to imprisonment for one year, and placed on probation for an aggregate of two years after the expiration of their prison terms and each of the defendants was fined $1,000. on each of the eight counts in the indictment . . . The aggregate sentence of imprisonment against the individual defendants was one year under the first two counts, and six months on the third and fourth counts to run concurrently.”

The 4th Circuit affirmed, mostly restating the district court’s opinion. “We agree with these conclusions and we feel further that the discussion in the written opinion of the District Court encompasses every aspect of the case in so lucid a manner that it is not necessary for us to repeat what has there been said.” The Fourth Circuit did include an impressive string cites of other cases involving Carolene Products:

The problem of the sale of filled milk products has had the frequent consideration of several state legislatures as well as the attention of Congress. An impressive array of courts, state and federal, has refused to accept the very contentions now presented to us by the defendants. United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234; United States v. Carolene Products Co., 7 Cir., 104 F.2d 969; Hebe v. Shaw, 248 U.S. 297, 39 S.Ct. 125, 63 L.Ed. 255;Carolene Products Co. v. Evaporated Milk Ass’n, 7 Cir., 93 F.2d 202; Carolene Products Co. v. Wallace, D.C., 27 F.Supp. 110, affirmed 307 U.S. 612, 59 S.Ct. 1033, 83 L.Ed. 1495; Setzer v. Mayo, 150 Fla. 734, 9 So.2d 280; State of Kansas ex rel. Mitchell v. Sage Stores Co., 157 Kan. 404, 141 P.2d 655, decided by Kansas Supreme Court, October 2, 1943. Contra: Mahoney v. Carolene Products Co., 1 Cir., 2 F.2d 366.

This company was quite litigious.

The Supreme Court granted cert for that appeal, and Justice Reed wrote the opinion for the Court (and some guy named Tom Clark was on the briefs for the United States). The Court only considered a narrow question of whether the product was in fact banned by the Filled Milk Act, consistently with the 5th Amendment.

The limited writ of certiorari in this case was granted to review petitioners’ conviction, affirmed by the Circuit Court of Appeals, for a violation of the Filled Milk Act.^[1] The Court was moved to allow the petition in order to examine the contentions that the accused articles of food cannot, under the due process clause of the Fifth Amendment to the Constitution, be banned from commerce when these compounds are nutritionally sufficient and not “in imitation or semblance” of milk or any milk product within the meaning of the statute and are not sold as milk or a milk product.

The Court upheld this challenge and affirmed the convictions of Hauser. Black and Douglas concurred without opinion. Amazingly, the case was argued on October 16, 1944, and decided on November 6, 1944. That is fast!

This portion from the Petitioner Brief is quite poignant:

If the judgment appealed from is permitted to stand, a great injustice will be done these defendants. Petitioners Hauser and Hartke have been branded as criminals and sentenced to substantial prison terms; all petitioners have been fined, and all because, forsooth, a highly nutritious product has been held to fall within the strict letter of a statute passed twenty years ago, when this product was unknown, to reach an entirely different, and deleterious, compound. . . . . It is unnecessary to discuss here whether or not, as certain members of Congress charged when the bill was under debate, the Filled Milk Act is legislation to protect not the public, but the profits of the dairy interests.*

However, Hauser never spent a year in jail, thanks to unlikely executive clemency from the President. In a future post, I will discuss the pardon Donna gave me. It seems that President Roosevelt also pardoned another famous defendant in a Supreme Court case.

As I discussed in my previous post, a federal district court ultimately struck down the law in 1972. Contrary to the statement in the article, Hauser died after the court’s ruling in in 1976 at the age of 94.

 

I am absolutely enthralled by Stephen Carter’s new novel, The Impeachment of Abraham Lincoln. The story provides an alternate history: Abraham Lincoln survives the assassination attempt, and instead Vice President Andrew Johnson is killed. A large portion of the novel is dedicated to the impeachment trial, at which Lincoln is represented by amazing attorneys.

There are a number of fascinating constitutional issues that are presented as matters of first impression. Mind you, in 1867, the Constitution was largely a blank slate.

First, the managers of the impeachment argued that Lincoln “violated the liberties of the people” by “order[ing] the seizure of copies of every telegram sent in the United States.” Lincoln’s attorney countered, and argued that “telegraph messages aren’t private.”

“A message sent by telegraph is read by the man who transcribes it at the telegraph office, the man who sends the code, the man who receives the code at the other end, and the man who writes out the words. The  man who delivers the message might read it, too. So might the man to whom we give the assignment of carrying our message to the telegraph office in the first place . . . . So the President’s order did not violate anybody’s privacy. Besides, there is no right to privacy in the Constitution. A right to property, surely. But the message forms–the actual papers seized–well if they constitute the property of anybody at all, I suppose they would be the property of the telegraph company. Let the Western Union Company, if it chooses, come to the Capitol to seek damages. Let the company go into court. The company will lose. In wartime, the government has a call upon the property of the people if that property is necessary to the war effort. The president and his advisers judged that seizing the telegraph form was necessary. I should think that would be the end of the debate.”

First. it is interesting how this argument presages the Third Party Doctrine, whereby communications shared with a third party lose any expectation of privacy under the Fourth Amendment. I would have liked to see a floor debate about privacy for the mails, but none was present in the book. In fact, after the lawyer made this argument, everyone else was dumbfounded in silence.

Second, and perhaps more importantly, this argument countenances expectations of privacy decades before Warren & Brandeis’s seminal article, The Right to Privacy, and a century before Katz (of course, Stephen Carter is writing with a century of hindsight, but the arguments made at the trial were those that could have been imagined based on the concepts known at the time).

Third, even assuming that the Fifth Amendment did not yet contain a right to privacy (no 14th Amendment yet, in this world), the Fifth Amendment still has a right to property–a right that protects the transmissions. However, the only party with standing would be the Telegraph Company. The person sending the message has no standing to complain about the seizure.

Fourth, the general resort to the Executive’s inherent wartime power rings true through all Presidencies. Just substitute seizing telegraphs with intercepting electronic communications via the Patriot Act.

One other constitutional issue that I had never considered concerns Article I, Section 3 and the role of the Chief Justice during impeachment trial.

When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

During the impeachment of the President, the Chief Justice of the United States presides. Should the Chief Justice be counted among the 2/3 of Members present to convict? It says “Members.” Not “Senators.” In other words, should the Chief have a vote? If the Senate is operating as a Court, with the Chief presiding, and each member acting as part of the court, would it really be that strange for the presiding officer to also vote? On our own Supreme Court, all 9 justices participate as a court, and the presiding officer also votes for the final disposition. I think in the impeachments of Clinton, and Johnson, the Chief did not cast a vote. But textually, is this foreclosed?

Interestingly, during Lincoln’s impeachment, Chief Justice Salmon Chase–whom Lincoln appointed to replace Roger Taney–had aspirations for the Presidency. So his calculations regarding the trial are fascinating.

Relatedly, how should evidentiary issues be resolved? In this trial, appeals from the Chief’s evidentiary rulings went to the body as a whole, and could be overturned by a majority vote of the members present. Is this textually permitted?

Another issue has to do with who would become President in case Lincoln was removed. In the book, Vice President Andrew Johnson had been assassinated. At the time, the President Pro Tempore of the Senate was next in line to the presidency after the VP. Could the President Pro Temp–the member of the Senate who would become President–vote to remove the President. Is there some inherent conflict of interest there? That is, you are voting to remove the person whose office you would ascend to? Not sure if this was ever resolved, but a fascinating issue.

I am about 2/3 of the way through the book. The trial part is riveting. I may write about it again.