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Justice Breyer, in joining the majority opinion in Fisher, felt like he dodged a bullet. He said “phew,” it could’ve been worse. Justice Ginsburg, perhaps learning her lesson from joining the majority opinion in NAMUDNO, broke off in Fisher. The four year gap between NAMUDNO and Shelby County (in which the all-important 2012 election, subject to VRA, took place) will pale in comparison to the 1 year gap between Fisher and Schuette v. Coalition to Defend Affirmative Action.

In Shelby, the biggest time bombs proved to be the language about “equal sovereignty of the states.” Justice Ginsburg expressed regret at joining that language. Justice Stevens couldn’t even acknowledge that he joined the opinion.

So, it may be fun to parse through the majority opinion in Fisher, and pluck out any possible time bombs that could be cited by a conservative majority next term, that significantly limits the use of affirmative action. The pithy opinion is only 13 pages, but certainly surprises lurk within the pliable language of Justice Kennedy. I think a rough guide for a timebomb is an important-sounding dictum without a clear citation to precedent–in other words, something new that was added.

A few candidates, which focus on the burden of the government to justify the use of affirmative action, and the nature of the court’s rule in applying strict scrutiny (substitute “university” for “government”). Granted Schuette is a somewhat bizarre case (read up on it), but the affirmative action framework will still be relevant.

• A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision.
• Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.
• True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Id., at 337.
• Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity.
• This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.
• Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.
• A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice

Will Justice Breyer still say “Phew” next term? Or will Justice Ginsburg say, “See I told you so!” Will it even matter? Or what about Fisher II on remand?

Let me preface this post by stressing that I support marriage equality, and agree with the outcomes in both Windsor and Perry. This post has nothing to do with equal protection or due process. Rather, this post focuses on the rule of law.

One of the more unfortunate byproducts of recent cases concerning gay rights has been a drastic departure from the longstanding practice of the government to defend laws until a court tells them not to.

Five years ago, Prop 8 was passed by a majority of Californians (a referendum that I would not have voted for). The Governors of California, first Schwarzenegger and later Brown, made the decision not to defend a law that was passed pursuant to their own state Constitution. The decision to withdraw from the case ultimately led to the Supreme Court dismissing the appeal, because no party had standing. Abdicating the government’s obligation to defend the law deprived millions of Californians of their vote (even though today the measure would almost certainly not pass).

On remand, even though the general practice of the Supreme Court is to wait 30 days for a remand, the 9th Circuit took it upon itself to vacate the stay. (Do you remember when 20 judges on the Central District of California Bankruptcy Court found DOMA unconstitutional? In a totally bizarre and unprecedented opinion? DOJ appealed). Within hours of the 9th Circuit’s order, the California Attorney General officiated at the first marriage with the eponymous plaintiffs from Perry (I watched the beautiful ceremony). The losing party in Perry, which had every right under the law to petition for a rehearing in the due course, was forced to file an emergency appeal, asking Justice Kennedy to stop ongoing ceremonies. The Supreme Court denied it. Again, the 9th Circuit and the California Attorney General, in their haste to get the marriages started, departed from the rules.

Let’s turn to the federal government. As pointed out during oral argument, the President has long defended and enforced federal laws, unless he deemed them to be unconstitutional, or infringed on his own executive power (an OLC opinion to that effect has been on the books fore a long time). The President made the odd decision to stop defending the law, but still enforced DOMA. I guess this is like “taking care, with discretion, that the laws are faithfully executed.” By withdrawing from the appeal, similar to the case in California, the federal government potentially deprived standing to anyone challenging the law (ultimately the Court founding standing for the BLAG, but this was not a given). But even worse, the Administration was so intent on this case going to the Supreme Court–even if the lower court ruled in their favor, that the SG filed a petition for certiorari before judgment in the Second Circuit. It is such an odd procedural wrangling, with the sole purpose of ensuring that *someone* could appeal on behalf of the government, even if it was the BLAG. At every state, the handling of this case departed from the normal rules of the Executive Branch.

Fast-forward to after Perry was decided. The Pennsylvania Attorney General has made the decision not to defend the state’s ban on same-sex marriage–even though the state laws (as I understand them) mandates that she defend all laws unless she independently determines it is unconstitutional. Nah, she said. She thinks the ban is unconstitutional, even though this conclusion does not necessarily follow from Windsor (unless you follow Justice Scalia’s dissent). No matter. Unlike California,where both the Governor and AG decided not to support the Prop  8 defense, Pennsylvania has a Republican Governor, Tom Corbett,who will defend the law.

More news from the Commonwealth. A county official, the “Register of Wills,” has personally decided that the state’s ban on SSM violates the Constitution. So what did he decide?  He’ll hand out marriage licenses to same-sex couples.

“I am going by my lights here. I am going by what I think is right,” stated Montgomery County’s Register of Wills, D. Bruce Hanes. He began issuing the licenses Wednesday morning, a day after signaling his willingness to do so.

Hanes said he doesn’t believe the state statute limiting marriage licenses to heterosexual couples complies with the Pennsylvania Constitution.

I do not know anything about the role of the Register of Wills. Though, I’m fairly certain that such a determination lies with a commonwealth court. I agree that members of the executive branch, and the legislative branch, should adhere to their oaths, and not do something unconstitutional. But this is a stretch of our separation of powers for officials to unilaterally make this decision.

All of these vignettes should trouble us–as soon as we peel back the fact that we may like the outcome. It’s not hard to fashion scenarios where a different executive branch official unilaterally makes decisions that can frustrate goals you may like. The failure to defend laws may totally insulate them from judicial review. Only *after* Perry was decided, did Erwin Chemerinsky come around and say, hey, we should worry about government’s not defending certain laws. Convenient.

The social movement behind the pursuit of marriage equality in this country, in all branches of government at the state and local level, has been remarkable. But I fear that we have made many exceptions to the rule of law that are unfortunate, and largely ignored the last few years.

Let’s not be so cheerful when authorities flagrantly ignore the law, based on a speculation of what courts will do. Sue the bastards. And let the courts make this decision.

 

Last night I had a dream that I was in the Supreme Court for the hand-down of a Voting Rights Act Opinion, but it wasn’t Shelby County. Justice Kennedy wrote for the majority, joined by the four conservatives, finding that some application of VRA was unconstitutional. Justice Thomas wrote a concurring opinion, joined by Justice Scalia (it was phrased as “joining in judgment, and joining the opinion, somewhat”). The concurring opinion began with something to the effect of, “Do you really expect us to believe this?”

Justice Kagan had the dissent, and for some reason it was illustrated. On the second page was the painting from the Girl with the Pearl Earrings. Instead of just reading it, she sang it, in a sing-song type way. There was a musical accompaniment. People were clapping.

I took out my phone (no idea why I had a phone in the Court) and started to record a Vine of it, while flipping through the pages of her opinion. Then when I tried to upload the Vine, I realized it was freemium, and I would have to pay more for uploads. Though, it was a cool vine so I payed like $14 for 20 uploads (way too much if you ask me). But it only uploaded part of it, and missed the part with Kagan singing.

In an interview with the AP, Justice Ginsburg showed regret for joining the majority opinion in NAMUDNO–especially in light of the fact that Roberts relied on that opinion to strike down Section 4 in Shelby County:

Roberts relied heavily on another decision from 2009 in which the justices essentially left the law alone while warning Congress about serious problems with the data and urging lawmakers to do something about it. They didn’t.

In that case, Ginsburg joined Roberts and every justice but Clarence Thomas to leave prior approval in place.

Ginsburg said she probably shouldn’t have done that. “I think in the first voting rights case, there was a strong impetus to come down with a unanimous decision with the thought that maybe Congress would do something about it before we had to deal with it again,” she said. “But I suppose with the benefit of hindsight, I might have taken a different view.”

This jives with Rick Hasen’s recent piece about whether the liberal justices are “savvy or suckers” for signing onto consensus opinions in Fisher and NAMUDNO, that are loaded with “time bombs with long fuses.” Justice Breyer said joining the Fisher opinion was the smart thing to do . Phew he said. RBG did not. Perhaps Justice Ginsburg, recognizing her error in NAMUDNO, wasn’t going to make the same mistake again.

Which brings us back to Justice Stevens. Unlike RBG, he didn’t have the stomach to note that he joined the Roberts opinion in NAMUDNO that helped support Shelby County.

This raises the question of why the liberal Justices may have missed these time bombs.  The Justices, and their clerks are not dumb, and they probably see the dangerous dicta, but due to the consensus, they must ignore it. Then, when the timebomb goes off years later, they are stuck with it.

In NAMUDNO, it would seem that everyone recognized what was going on. The Court would punt on striking down the VRA, and give Congress the opportunity to fix it. But everyone know that would never happen (Ginsburg admitted she naively thought Congress would “do something about it”) and it was simply a precursor to striking down the VRA in a later case. This was the compromise. With that being said,  wouldn’t the savvy liberal justices (Stevens in particular)  have been on heightened alert about any potential time bombs (like  “equal sovereignty of the states”)? Or, because the coalition wanted to have an opinion without any fractures, they simply signed on to anything? Perhaps hoping that in a few years the Court would do something different?

Maybe one day we can know about the internal dynamics.

H/T Rick Hasen

Update: Rick links to a 2009 American Prospect piece by Heather Gerken looking at what could come after NAMUDNO–and whether RBG’s hopefulness was well-founded.

 Is there a chance Section 5 will survive when we tune in next?

Perhaps. Everyone knows the recipe for ending a B movie. Sometimes the guy holding the gun just blinks. It may be that when the lawyers re-enact this drama, Justice Anthony Kennedy — widely thought to be the swing vote in this case — will not provide the fifth vote to invalidate Section 5.

Or perhaps Section 5 has another escape route. The Court darkly hints in its opinion that Section 5 will likely fall under both the demanding “congruence and proportionality” test and the gentler “rational means” standard.

…

Finally, it’s possible that the cavalry might come to Section 5’s rescue, in the form of a congressional solution. …. Depending on Congress to save the day means betting on a long shot. Congress is powerful, but it’s a lumbering giant, one that often requires a fairly sizeable crisis to get it to budge. Whether the Supreme Court’s implicit threat is enough of a prod remains to be seen. But that, of course, is just what makes for a good cliffhanger.

This is totally off the wall, but hear me out. The appointment clause provides that Congress may vest the appointment power in the “Courts of Law.”

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As it stands now, the Chief Justice alone exercises this power. Among his duties, he unilaterally appoints judges to the Foreign Intelligence Surveillance Court. But what if these appointments were invalid?

James Pfander has argued that these decisions are not for the Chief alone to make, but instead are for the entire Court–all 9 Justices–to decide. Let’s say this argument is correct, as a matter of original meaning. I have no idea if it is, but hey, courts have been willing to revisit longstanding precedents based on original meaning regarding the appointment clause (Canning). So why not?

If that’s the case, can anything be done to challenge the Chief Justice’s unilateral appointment of judges to the FISA court? Would anyone have standing, to assert that these FISA judges are being appointed inconsistently with the appointment clause? Since these aren’t technically Article III judge appointments (the positions are for a set term), they could be viewed as some kind of magistrate judge (which are routinely appointed by other judges). Though, in light of their work, this is not a good analogy. And that still would not get around the pesky issue that the Chief appoints them solo.

Charlie Savage reports on how Roberts has almost exclusively picked conservative judges with history in the executive branch, and notes that there proposals to modify the appointment process:

Mr. Blumenthal, for example, has proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court’s decisions, but six other Supreme Court justices would have to sign off. Another bill, introduced by Representative Adam B. Schiff of California, would give the president the power to nominate judges for the court, subject to Senate approval.

Would any of these fit in with the appointment clause? Can Congress delegate the power to appoint judges to Chief Judges of the Circuits? Those courts were not created yet at the time of the Constitution, so there is a colorable argument that they do not fit in with the “courts” language. I’m not sure how requiring 6 justices to agree would sidestep any of these problems, unless you call that a majority of the “Courts” of law, which would work. Asking the President to appoint the FISA judges would be just fine. Boy would those confirmation hearings be fun.

Interesting thought experiment over. Back to your regularly schedule blogging.

Update: James Pfander makes his point here.

There may be a simple solution to the perceived problem of bias in the appointment of judges to the Foreign Intelligence Surveillance Courts (or FISA courts): shift the appointment power away from the Chief Justice and give it back to the Supreme Court.

Such a move would address the concern that the Chief Justice, John G. Roberts, has appointed mostly Republican judges to that court, as reported in the New York Times on Friday. The shift may well be required by the Constitution, which provides for Congress to vest the power to appoint inferior officers in the “courts of law” but does not authorize the assignment of any appointment power to the Chief. Or so I argue, anyway, in a recentpaper, “The Chief Justice, the Appointment of Inferior Officers, and the ‘Court of Law’ Requirement,” 107 Nw. U. L. Rev. 1125 (2013).