Thank you to Craig Cohen for hosting me on Houston Matters today, and me fellow guests, Peter Linzer from the University of Houston, and Debbie Hunt, and attorney who focuses on LGBT family law cases. The segment information is here, and the audio is here, and below. I was on with this group for the first 36 minutes or so. We talked about DOMA, Prop 8, Fisher, and Salinas v. Texas.
Now that this pesky SSM case is out of the way, this does seem like a viable solution to give unpopular referendums a defense:
States such as California, with laws allowing ballot initiatives, should also enact laws requiring that a special attorney for the state be appointed in each instance that the government elects not to defend an initiative. Such a process would be well within the bounds of established law, since states get to decide for themselves who will represent them in court.
Because the attorney, even if not a state employee, would be appointed by the state, he or she would be representing the state and therefore have standing. This sort of appointment of outside counsel already happens in certain other instances, such as when there is a conflict of interest. The only difference here would be that, whenever the state opted not to defend an initiative passed by voters, an appointment would be required.
Such a law would be completely consistent with the Supreme Court’s ruling in the Proposition 8 case. The court held that it has never allowed the supporters of a law to defend it when the state chooses not to do so. With the mechanism I propose, it would still be the state defending the law; it would just be represented by a special attorney, something well within the state’s prerogative and within the Constitution’s requirement for standing.
The end of the October 2011 term was an absolute debacle, as far as the media is concerned. In the haste to the the first to broadcast the outcome of the healthcare decision, two networks, CNN and Fox News, erroneously reported that the Court struck the mandate down. Turns out they didn’t read the entire holding before going live. The CNN reporter on camera is shown reading from pages 1-3 of the syllabus. Had she gone to the fourth page, she would have seen Roberts’s saving construction. (I discuss the minute-by-minute drama of the last day of the term in my book).
This year, the media got it right.
On Wednesday morning, the television networks that reported the rulings first got them right. NBC and ABC reported within seconds of each other at 10:02 a.m. that the court had overturned the Defense of Marriage Act. CBS and other television news organizations soon followed. All the major wire services also reported the news within about a minute of one another.
Here are the finish times of the wires:
The conventional wisdom on speed, alas, hasn’t prevented news organizations from going fast. Following the release of this morning’s Supreme Court ruling in the DOMA case, here are the finish times of some key organizations:
Bloomberg: 10:01:13
Reuters: 10:01:32
AP: 10:02:27
Bloomberg reporter Greg Stohr, who also was first last year to report that the mandate was upheld, wrote 18 (!) different ledes!
That’s not to say, however, that Stohr’s work on the story started this morning at 10:00 a.m. No, he began working on the story a month-and-a-half ago, he says. Much of the work consisted of thinking through all the intricate legal scenarios that the Supreme Court could possibly concoct in deciding the DOMA case and the Prop 8 case, which also made news today. The brainstorming process, says Stohr, ultimately yielded 18 story ledes and many more headlines — all of which were ready for publication this morning. “We had ledes written for what do we say if we had a DOMA ruling but not Prop 8,” says Stohr, who emphasizes that Asseo and Drummond were critical to the effort. “What do we say if we have Prop 8 but not DOMA? And what do we say when we have both of them?”
He digested the opinion in roughly 30 seconds:
The winner among these outlets, Bloomberg News, put a three-person team on today’s rulings: Supreme Court reporter Greg Stohr, who’s been on the beat since 1998, plus editors Laurie Asseo and Bob Drummond. Once the decision became available this morning, Stohr grabbed it and hustled over to the cubicle in the Supreme Court’s press area, where he worked with Asseo and Drummond to assess the document and what it said.
Stohr checked that the ruling said “affirmed.” He checked on the headnotes. He checked how the various justices lined up on the decision. Then he and the team pushed out their take on the situation.
Total elapsed time: 30 seconds. Says the 46-year-old Stohr in an interview with the Erik Wemple Blog: “I’m going to guess that it was something like 30 seconds between the time that they gave us the opinions and the time that the headlines went out.”
In fairness, the outcome of this case was much, much, much easier to decipher than NFIB. But kudos anyway. CNN, however, took its time.
CNN was the exception. Burned before in the health care ruling, it moved much more slowly this time around; the anchors and commentators waited several minutes longer than their rivals before reporting the DOMA ruling. “We’re going through the writings of the justices,” the CNN anchor Wolf Blitzer said at 10:05 a.m. “We want to be precise, obviously.”
Of course, Blitzer blew the coverage last year.
An interesting reading of Koontz from J. David Breemer:
With this background in mind, what struck me about Koontz is that the entire Court seemed to agree that a property owner who challenges a permit denial under Nollan/Dolan due to an offending condition can seek to invalidate the condition under the unconstitutional conditions doctrine, as well as potentially seek damages under a state or federal statute, but is not entitled to just compensation under the Fifth Amendment. See Slip. Op., at 11 and the dissenting opinion, at 2. If this is so, then such plaintiffs are free of Williamson County. After all, that decision hinges entirely on the Just Compensation Clause of the Fifth Amendment. If the Just Compensation Clause is inapplicable to permit denial/unconstitutional conditions plaintiffs, and invalidation is a proper remedy, as Koontz appears to say, then Williamson County does not apply by its own terms. And that in turn means that Nollan/Dolan permit denial plaintiffs can sue immediately in federal court on the ground the government has denied a permit because the applicant refused to accede to a condition.
…
All of which leads to the conclusion that, after Koontz, Williamson County may be on very shaky ground in theNollan and Dolan context, and federal courts may therefore soon be deciding these claims, as many believe they should have been doing all along.
I don’t know if Koontz speaks to this specifically, but it flows naturally that if a person is suing for a exaction based on a permit denial, there is no taking to possibly compensate, and the ripeness concerns are no longer present. The only question to litigate is the unconstitutional conditions questions, which would result in damages under 1983, apart from the just compensation clause.
Rick Hills reads Koontz more narrowly:
Koontz did nothing to disturb this remedial equivocation, declaring that “[b]ecause petitioner brought his claim pursuant to a state law cause of action,the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases” (Slip op. at 11).
This may be the most important sentence in the opinion — a hint at the SCOTUS’s “exit strategy” when developers start challenging plazas, parks, playgrounds, and the like. San Remo Hotel v. San Francisco severely limits developers’ power to bring a federal takings claim in federal court: If state courts can continue to define the Nollan–Dolan remedy as invalidation of the illegal condition and denial of the zoning permission, then Koontz will be a practical dead letter.
Any thoughts?
Adam Liptak has a characteristically insightful end-of-the-term piece on the long view of the Roberts Court. Adam argues that the Chief moves in slow steps, trying to build large consensus opinions with broad majorities, only to cite those liberal votes later in moving further to the right.
The more meaningful way to look at the court is as a movie, one starring Chief JusticeJohn G. Roberts Jr. as a canny strategist with a tough side, and his eyes on the horizon. He is just 58 and is likely to lead the court for another two decades or more.
Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.
As examples of this progression, he cites the move from FEC v. WRLTF to CItizens United.
In 2007, for instance, when Chief Justice Roberts took a calculated step toward limiting campaign finance regulation, Justice Scalia accused him in a concurrence of effectively overruling a major precedent “without saying so.”
“This faux judicial restraint is judicial obfuscation,” Justice Scalia said.
Three years later, building on the 2007 decision, the court issued its decision in Citizens United, allowing unlimited corporate spending in elections. The chief justice had moved slower than Justice Scalia had wanted, but he got there.
Ditto for NAMUDNO v. Holder to Shelby County.
On Tuesday, when the court struck down a part of the Voting Rights Act, Chief Justice Roberts harvested seeds he had planted four years before. In his 2009 opinion, writing for eight justices, he allowed the Voting Rights Act to stand. But the price he exacted from the court’s liberal wing was language quoted in Tuesday’s decision that seems likely to ensure the demise of the law’s centerpiece, Section 5, which requires federal oversight of states with a history of discrimination.
…
In the decision, Chief Justice Roberts repeatedly quoted from his 2009 opinion. He took pains to note that eight members of the court, including its four liberals, had already agreed that “things have changed in the South” and that the voting law seemed at odds with principles of federalism and “equal sovereignty” among the states.
The liberal justices, he suggested, had joined him four years ago in building a time bomb with a very long fuse.
And this term, Fisher v. Texas to, perhaps Fisher II.
The chief justice helped plant new seeds on Monday, when seven justices, including two liberals, agreed to sign an opinion that over time could restrict race-conscious admissions plans at colleges and universities. Only the senior member of the court’s liberal wing, Justice Ruth Bader Ginsburg, filed a dissent.
Perhaps RBG is the only Justice onto the Chief’s shenanigans. She probably also knows that she won’t be around long enough to see these doctrines through. Or maybe she just sees the writing on the wall.
Update: Rick Hasen identifies perhaps another similar tactic with respect to Boerne v. Flores, a standard mentioned in NAMUDNO, but not in Shelby, except by implication. Rick introduced the concept of the time bomb years ago in an aritcle.
The failure to set the standard of review is no mere oversight by Chief Justice Roberts. The footnote appears deliberately inscrutable: the Court sidesteps an issue about the standard of review in Case 1, and in Case 2 the Court endorses Case 1’s analysis of the standard of review. And the rest of the opinion is not helpful either: the equal federal sovereignty analysis which the Court uses to kill Section 5 of the VRA is a Bush v. Gore-like one-day-only ticket. Few other voting laws fit this pattern (though one could imagine the language provisions of the Voting Rights Act in Section 203 falling under this analysis).
I presume the Chief Justice obfuscated the standard of review in this case as a time bomb: in a future case he could cite to NAMUDNO and Shelby County fn. 1 for the proposition that the Court has held that the Fourteenth and Fifteenth amendment standards are the same, and then bootstrapping theBoerne standard into a Fifteenth Amendment case. Saying so directly would have made today’s controversial decision even more provocative than it is; obfuscation better serves the Chief Justice’s attempt to portray his decision as an act of judicial modesty rather than a radical restricting on Congress’s power against the states (more on that in my op-ed for The New York Times). A future opinion can still look back on the obscure footnote as having resolved a key issue. The time bomb explodes.