Blog

On December 27, 2012, Justice Stevens continued his rehabilitation tour in a speech at the Waldorf Astoria in Naples, Fl. This time, he directed his ire at Justice Scalia and his vote in McDonald v. Chicago, Chief Justice Rehnquist on the 11th Amendment, and for good measure Chief Justice Vinson and Justice Jackson on the 14th Amendment.

I have blogged before that I think Stevens’s extrajudicial comments about cases he decided are inappropriate. This is disrespectful to the Court for JPS to continue assailing the Justices–who he knows cannot respond!

Anyway, here are the key excerpts of the speech going after Justice Scalia:

At the end of my last Term on the Supreme Court, over my dissent a majority of five Justices held that Chicago’s ordinance prohibiting the possession of handguns in the home was unconstitutional. The principal contention advanced by the petitioner was that the right to keep and bear arms protected by the Second Amendment against federal infringement was made applicable to the States by the Privileges or Immunities Clause of the 14th Amendment; his secondary argument was that the right was protected by the Due Process Clause of that Amendment. The former argument asked the Court to overrule the Slaughter-House cases, decided in 1873, whereas the latter would require the majority to reaffirm the doctrine of “substantive due process” – the line of cases that holds that due process protection is not limited to procedural guarantees but also includes substantive protections of important interests in liberty, such as parents’ right to have their children educated in a parochial school and a woman’s right to have an abortion.

The dilemma that faced the justices, who had just recently breathed new life into the Second Amendment, is illustrated by this colloquy about the Slaughter-House Cases between Justice Scalia and petitioner’s counsel at the oral argument:

“[W]hy are you asking us to overrule. 140 years of prior law, . . . when you can reach your result under substantive due [process] ­ I mean, you know, unless you’re bucking for a place on some law school faculty …. [W]hat you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have – even I have acquiesced in it.”

It occurred to me as I listened to that colloquy, that if 140 years of precedent required Justice Scalia to reject the petitioner’s primary submission, and if he were truly convinced that the doctrine of substantive due process is ~wrong”, he should vote to uphold the Chicago ordinance. Given the fact that the purpose of the Second Amendment was to protect the States’ ability to regulate their own militias, it would have been especially appropriate to render a decision that gave state legislators, rather than federal judges, the final say about the validity of local gun control regulations. As you know, I was wrong about how Justice Scalia would vote in the case, and, according to the majority, equally wrong about how the case should be decided.

Now I agree with Stevens. I wrote several op-eds and articles to that effect. Scalia’s vote in McDonald was hypocritical, and his acquiescence to substantive due process, while at the same time rejecting the Privileges or Immunities Clause argument was fatally flawed, and inconsistent with Nino’s own jurisprudence. But I can say that. I’m a measly blogger. JPS should take note from former Presidents who have stayed out of the fray, and not criticized their predecessors.

I’d love to be the fly on the wall for a meeting between Posner and Stevens. It would be like the “He-ManWomanHaters Club,” except against Scalia.

And for good measure Stevens dumps on Chief Justice Vinson and Robert Jackson. What is wrong with him!?

In my discussion of the case in my book, Five Chiefs, I explain that the refusal of Chief Justice Fred Vinson and Justice Robert Jackson either to overrule or to distinguish the clearly erroneous earlier Louisiana case adversely affected my appraisal of their work.

Stevens continues to talk about the Privileges or Immunities Clause and Slaughter-House. You know, if he was so hot-to-trot about P or I, he should have written about it in his opinion, instead of invoking Justice Harlan II’s opinion in Poe v. Ullman to rewrite 75 years of incorporation jurisprudence. Notably, none of the other Justices bought JPS’s parting salvo.

And of course, JPS turns to the 11th Amendment to criticize Chief Justice Rehnquist! Because, why not. Not like Rehnquist can say anything in response.

My conclusion that the decision really had nothing to do with the text of the Eleventh Amendment is buttressed by the fact that in the final Louisiana case that I shall mention tonight, Hans v. Louisiana, the Court reached the same result in a case brought by a Louisiana citizen. It is that case that is the centerpiece of the misguided sovereign immunity jurisprudence that was crafted by Chief Justice Rehnquist during his tenure, and unfortunately expanded by five misguided Members of today’s Court.

Today, under that jurisprudence ­ notwithstanding several attempts to modify the law by unanimous Congresses – state universities and other state agencies enjoy an immunity that not only enables them to refuse to pay their creditors, but also protects them from paying damages for patent infringement, for copyright infringement, for trademark infringement, and for violating a host of other federal statutes protecting their employees from discriminatory practices. I am persuaded that those strange judge-made rules would never have become a part of our law if the Union forces had not been withdrawn from the South after Grant’s tenure in office ended. Moreover, if he were alive today, I feel sure that he would have led a campaign to ship the whole doctrine of sovereign immunity back to England where, long ago, the Queen’s subjects once believed that the sovereign can do no wrong

WTF? General Grant would ship Chief Justice Rehnquist’s 11th Amendment Jurisprudence back to England? That’s a terrible joke, and ridiculous.

This is beneath the office of a Senior Associate Justice of the United States Supreme Court.

JPS needs to stop this chicanery.

H/T Mike Sacks

I have previously blogged about what I saw as the relationship between certain structural components of our Constitution–namely the doctrine of enumerated powers and federalism–and the power of the Constitution to constrain rent-seeking (See here, here, and here). I have focues on the link between Madison’s Federalist No. 10 and rent-seeking:

As Madison wrote, factionalism and rent seeking cannot be eliminated without eliminating liberty itself. All you can do is “control[] its effects.” With classic republican representatives in office, one need not worry so much about the effects of rent seeking. But this will not always be the case. Madison recognized this inherent failure in elected officeholders:

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole. The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.

So how does our Constitution “control[] the effects” of factionalism,or rent seeking?

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.

This last sentence has always intrigued me, especially when I consider it against the backdrop of the document the Federalist was championing–our Constitution. If republican principles fail, how do you render majorities “unable to concert and carry into effect schemes of oppression.” The answer to this question lies in what I see as part of the genius of our Constitution–structure. Federalist 10 focuses heavily on our federalist system, with the checks of the states on the federal government.

Renee Lettow Lerner wrote a great essay in the Harvard JLPP looking at just this issue, titled “Enlightenment Economics and the Framing of the U.S. Constitution.”

Some scholars have argued that the Framers of the U.S. Constitution did not have a common set of views on economics, or that the Constitution, except perhaps in isolated clauses, does not reflect any specific economic views. The principal Framers did, in fact, share a basic set of economic views, though of course they did not agree on all economic questions. Their shared economic views were common to enlightenment thinkers: promoting free trade, curtailing rent-seeking (the transfer of wealth from producers to non-producers through political power), and, in most instances, eliminating monopolies.

These economic views permeate the Constitution and are not manifest only in odd clauses. The Framers designed many features of the Constitution to further these economic ends. I discuss four of them here: (1) the Commerce Clause; (2) the interstate and alien diversity clauses; (3) the elaborate procedures of bicameralism and presentment for enacting bills (and the provision allowing the Senate to amend financial bills); and (4) the enumerated constitutional limitations on legislative power.

Lettow Lerner also comments on factionalism from Federalist No. 10 and rent-seeking:

The Framers also designed the legislative process to further commerce and to prevent rent‐seeking indirectly. They viewed faction as one of the greatest dangers to a republic. Madison defined a faction in Federalist No. 10 as a “number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of pas‐ sion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”28 One form of faction is the modern, rent‐seeking interest group. In Federalist No. 10, Madison confidently declared that factions would not easily be able to attain their ends under the Consti‐ tution because of the diversity of interests in a large republic.29 He referred to the difficulty of a faction getting its program through “the national council.”30 He and his fellow Framers had carefully designed the federal legislative process as a sys‐ tem of checks and balances to thwart faction. Through bicam‐ eralism and presentment, each chamber could check the other, and the President could check both.31 The Framers believed that this elaborate process would help to weed out faction‐ inspired measures that were rent‐seeking.

From the article, here is the section on enumerated powers:

Finally, the Framers intended the enumerated powers of Con‐ gress to limit the subjects the national legislature could address. This limitation served not only to preserve powers in the States, but also to control the possibilities for national rent‐seeking and congressional interference in the economy.

I recently attended a workshop on Hayek’s Law, Legislation and Liberty, which gave me a lot of food for thought. Combined with my writings about Black Swan theory, I have the makings of a pretty interesting article about the relationship between the structural protections of our constitution, public choice theory, and classical liberal thought.

In a dissental [Update: It was not a dissental, but a statement concurring in the denial of cert–the rarer concural]  in Calhoun v. United States, Justice Sotomayor, joined by Justice Breyer, takes exception to a racially-charged comment made during the prosecution of a drug conspiracy case, and bench-slaps the  Assistant U.S. Attorney for the Western District of Texas

The issue of Calhoun’s intent came to a head when the pros-  ecutor cross-examined him.  Calhoun related that the  night before the arrest, he had detached himself from the  group when his friend arrived at their hotel room with a  bag of money.  He stated that he “didn’t know” what was  happening, and that it “made me think . . . [t]hat I didn’t  want to be there.” Tr. 125–126 (Mar. 8, 2011).  (Calhoun had previously testified that he rejoined the group the next morning because he thought they were finally returning home.  Id., at 109.) The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the  hotel room.  Eventually, the District Judge told the prosecutor to move on.  That is when the prosecutor asked,  “You’ve got African-Americans, you’ve got Hispanics,  you’ve got a bag full of money.  Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”  Id., at 127.

Though Sotomayor agrees that the comment was not objected to, thus procedurally defaulted, and Calhoun failed to show that there was a plain error, she wrote separately to express her opinion about the invidiousness of this comment from an AUSA.

By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.  There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider  the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of  determining his intent at the time he entered Mrs. Rowe’s  home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520  (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50  Tex. Crim. 560, 561, 100 S. W. 393 (1907).  The prosecutor’s comment here was surely less extreme.  But it too  was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade  into the 21st century.  Such conduct diminishes the dignity of our criminal justice system and undermines respect  for the rule of law. We expect the Government to seek  justice, not to fan the flames of fear and prejudice.  In  discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of  Texas missed the mark.

She stops short of naming names, though I’m sure that AUSA was already in some hot water. Sotomayor also comments on the manner in which the government appealed this case to the 5th Circuit:

Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the Government failed to recognize the wrongfulness of the prosecutor’s question, instead calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated ac-knowledgment came only after the Solicitor General waived the Government’s response to the petition at first, leaving the Court to direct a response. I hope never to see a case like this again.

I have written in the past about Justice Sotomayor’s practice of dissenting from denial of cert–something that has been cited as evidence of her “guiding” the liberal wing of the Court (we can probably expect a NYT editorial praising this dissental).

It is an interesting use of the SCOTUS dissental to point out egregious facts of a single case, rather than a broader trend of the law that may relate to certain recurring, structural problems.

On the topic of racial stereotypes, I am reminded, somewhat, of Justice Thomas’s opinion in Grutter v. Bollinger, where he discounts the difference between the beneficial, as opposed to invidious use of racial stereotypes. The Grutter majority likely saw the use of Affirmative Action as the former. Justice Thomas saw it as the latter.

 Undoubtedly there are other ways to “better” the education of law students aside from ensuring that the student body contains a “critical mass” of underrepresented minority students. Attaining “diversity,” whatever it means,3is the mechanism by which the Law School obtains educational benefits, not an end of itself. The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks.

3.  “[D]iversity,” for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one’s skin constitutionally irrelevant to the Law School’s mission, I refer to the Law School’s interest as an “aesthetic.” That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them.     I also use the term “aesthetic” because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf.Orr v.Orr,440 U.S. 268, 283 (1979) (noting that suspect classifications are especially impermissible when “the choice made by the State appears to redound … to the benefit of those without need for special solicitude”). It must be remembered that the Law School’s racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.

I’m certain the issue of the downsides of the former will come up soon in Fisher v. Texas, which tees up the so-called mismatch effect.

I suspect that Justices Sotomayor and Thomas disagree on this issue.

Update: Ken at Popehat names the prosecutor (I tried, but could not find his name, and did not have time to look at PACER):

Justice Sotomayor did not name the prosecutor. The United States Court of Appeal for the Fifth Circuit did not name the prosecutor. CNN did not name the prosecutor. The Chicago Tribune did not name the prosecutor, calling him “unidentified.” Courthouse News — which specializes in covering the justice system — did not identify the prosecutor.

I, an obese fuzzy-slippered blogger, was able to identify the prosecutor in ten minutes using PACER. Eight of those minutes were because I accidentally selected the Western District of Tennessee rather than the Western District of Texas the first time I searched. On PACER, I found the case, found the docket, found the trial transcript, found the list of prosecutors on the case, found the transcript of the day in question, and found the exchange in question:

USA PONDER: Okay.
Q (By Ausa Ponder) I didn’t — you’re telling
this to this jury.
A I understand.
Q You’ve got African-Americans, you’ve got Hispanics, you’ve
got a bag full of money. Does that tell you — a light bulb
doesn’t go off in your head and say, This is a drug deal?
A No, sir.

That’s Assistant United States Attorney Sam L. Ponder of the U.S. Attorney’s Office for the Western District of Texas in San Antonio suggesting that African-Americans plus Hispanics plus money means drugs.

 

My friend Ilya Shapiro frequently cites the fact that Manhattan is a covered jurisdiction under the Voting Rights Act, but not Staten Island, as evidence that the coverage maps are antiquated and out of date. I always wondered, why is New York City, hardly Jim-Crow-Territory, covered by VRA

Daniel Brook writes an interesting piece in Slate that sheds some light on this historical anomaly:

In the state of New York, home to the nation’s most international city, a burgeoning immigrant population at the turn of the last century sparked a similar disenfranchisement push, one that ultimately led three of New York City’s five boroughs to become covered jurisdictions under the Voting Rights Act. New York’s voter suppression effort began in fits and starts. One early-20th-century law required that voters in the state’s largest cities reregister every year, a cumbersome mandate imposed under the pretext that urban voters’ frequent changes of address opened the door to voter fraud. In the 1908 election, concern that Jewish immigrant voters would support Socialist Party candidate Eugene V. Debs prompted city authorities to hold voter registration solely on Saturdays, the Sabbath during which observant Jews are forbidden from writing, and on a single Monday, Yom Kippur.

In 1921, New York State voters adopted a more comprehensive disenfranchisement strategy: They passed a referendum mandating that registrants pass an English-language literacy test. Unlike Southern literacy tests, which were studded with trick questions and capriciously graded by all-white registration staffs (see Jim Crow Louisiana’s test here), the New York State test sincerely tested English literacy—in a sincere effort to disenfranchise citizens who didn’t speak English as their first language.
As it happened, the people most disenfranchised by the test were not actually immigrants, who were rare after Congress passed the National Origins Act and Asian Exclusion Act in 1924, but internal migrants from Puerto Rico. Born on U.S. soil, Puerto Ricans had voting rights through birthright citizenship. But having been educated in the Spanish-language public schools on the island, they couldn’t pass New York’s English-language test and subsequently lost their ability to vote when they moved to the city seeking better jobs. At the time the Voting Rights Act passed, only 30 percent of Puerto Rican New Yorkers were registered to vote. After the 1968 election, Manhattan, Brooklyn, and the Bronx became covered jurisdictions according to a coverage formula that mandated preclearance for jurisdictions that had used a “test or device” to limit voting and had low registration and/or turnout statistics. A separate provision of the Voting Rights Act, which is not being challenged at the Supreme Court, invalidated New York’s literacy test as well as the pseudo-literacy tests in the South.

On Monday at noon, I will be giving at talk at Stephen F. Austin State University in Nacogdoches, Texas on the challenge to the Affordable Care Act. The details here here. If you are in the area, come say hi!