Blog

Ron Collins interviews Judge Alex Kozinski concerning his “Ten Commandments” to become a federal judge by the age of 35. One suggestion stood out:

Question: What do you think of an 11th “Commandment”: Whatever else you do, avoid writing anything on any potentially controversial topic (e.g. capital punishment, criminal justice, abortion, campaign finance, gay rights, women’s rights, corporate rights, environmental protection, etcetera).

Kozinski: I’m not so sure. You do have to do something to be noticed. Timidity may result in its own kind of failure.

In response to the increasingly-contentious confirmation hearings, there seems to be a rising perception that judicial nominees who have written on controversial topics are non-starters. As a result, those who aspire to become judges (the “Little Supremes“) may get the message that the safest passageway to Article III is to go the way of John Roberts or Elena Kagan–be successful and well-liked, but never take a controversial position on anything to make your confirmation hearing as simple as possible. (Both attended Federalist Society meetings, but neither were members). I think this is a serious mistake. Being milquetoast won’t get you noticed–especially when done so deliberately to avoid saying anything that could raise eyebrows.

But even more troubling, this pattern of going incognito deprives our society of some of the greatest legal minds. As Pamela Karlan–a brilliant attorney who the Obama Administration didn’t fight for a federal judgeship–explained, “trimming your sails” simply isn’t worth it.

Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime. Sure, I’ve done lots of things I regret over the years. But the things I regret aren’t the things that keep someone from being nominated or getting confirmed. I regret being unkind to people I love and respect and admire. I regret getting frustrated by little things. I regret never taking a summer off. I regret not being able to stick to a diet. But I don’t regret taking sides on questions involving the Voting Rights Act. I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. I don’t even regret being sort of snarky.

Take a person like Eugene Volokh for example. Eugene is one of the greatest scholars of our generation, and over two-plus decades, he has written thousands of articles, blog posts, and op-eds on every legal topic you can imagine. The Ninth Circuit would benefit immensely from his appointment. However, think about his nomination from the White House’s perspective. Actually vetting every single blog post is practically impossible. No matter at how closely you read every single thing Eugene wrote, Media Matters and the Center for American Progress will find some obscure comment, when taken out of context, paints Eugene in a bad light. It’s what they do best. A shaky White House Counsel may simply say, “Nah. Not worth it. Let’s go with someone safer whose record is simple.” Pure applesauce.

The Executive Branch should fight to appoint exceptionally qualified jurists who have expressed themselves, rather than ciphers who have kept their nose clean in the hopes of one day getting appointed. The cipher problem is especially problematic for the advocate-nominee, who always represented a client’s views, and never articulated their own views. I’m looking at you John Roberts.

Leading up to 2016, this is a topic that should receive more thought. Perhaps one of the few benefits of the nuclear option is that Presidents no longer need to seek 60 votes for their nominees. The fifty-vote threshold, on the margin, should allow more qualified nominees with records to make it through the Circuit Court–but not Supreme Court–nomination process.

I am reminded of a book review written in 1996, in response to a book by Steven Carter about the Supreme Court nomination process, titled The Confirmation Mess.

This excerpt highlights that vapid confirmation hearings where nothing is discussed, gives a benefit to nominees who lack paper trails. In contrast, in substantive hearings where the issues are engaged, the nominee without a paper trail (perhaps a member of the Little Supremes) would have no advantage over the candidate with a prolific record. Indeed, the dynamics would be switched, so candidates with paper trails would be advantaged.

Further, a commitment to address substantive issues need not especially disadvantage scholars and others who have left a “paper trail,” as the received wisdom intones and Carter accepts (p 38). The conventional view is that substantive inquiry promotes substantive ciphers; hence the hearings on Robert Bork led to the nomination of David Souter. But this occurs only because the cipher is allowed to remain so–only because substantive questioning is reserved for nominees who somehow have “opened the door” to it by once having committed a thought to paper. If questioning on substantive positions ever were to become the norm, the nominee lacking a publication record would have no automatic advantage over a highly prolific author. The success of a nomination in each case would depend on the nominee’s views, whether or not previously expressed in a law review or federal reporter. Indeed, a confirmation process devoted to substantive inquiry might favor nominees with a paper trail, all else being equal. If there was any reason for the Senate to have permitted the testimonial demurrals of Justices Breyer and Ginsburg, it was that their views already were widely known, in large part through schol- arship and reported opinions–and that those views were widely perceived as falling within the appropriate range. When this is so, extended questioning on legal issues may seem hardly worth the time and effort. [FN30] More available writing thus might lead to less required testimony in a confirmation process committed to sub- stantive inquiry.

The author of this review, of course, is Elena Kagan. Confirmation Messes 62 U. Chi. L. Rev. 919 (1995).

Jack Goldsmith writes that the President is doing nothing by seeking a vote from the U.N. Security Council on the Iran deal before the 60-day review period afforded to Congress under the Iran Nuclear Agreement Review Act.

The President’s team cleverly stitched together the President’s authority to lift domestic sanctions, his authority to make political agreements, and his authority to vote for the United States in the Security Council, in order to make sure the Iran Deal would stick unless supermajorities of Congress reject it.  Don’t blame the President for doing something legally sketchy when he is exercising clear authorities.  And don’t blame the Iran Review Act for seeking to delay the President from exercising some of these authorities.

Isn’t this just the mantra of the Obama Presidency? Although, in my estimation, the “sketchiness” of the action far exceeds the “clarity” of authorities.

After President Obama failed to achieve any gun control legislation in the aftermath of Sandy Hook, he ordered his administration to take a series of executive actions to limit access to guns. At the time, most of the proposals seemed relatively limited in scope. But now, the ramifications of those actions are coming to light.

The Los Angeles Times reports–in a somewhat murky story without details–that the Obama Administration is incorporating the social security database into the National Instant Criminal Background Check System, so that people who “lack the mental capacity to manage their own [financial] affairs” will no longer be able to acquire firearms.

Seeking tighter controls over firearm purchases, the Obama administration is pushing to ban Social Security beneficiaries from owning guns if they lack the mental capacity to manage their own affairs, a move that could affect millions whose monthly disability payments are handled by others.

The push is intended to bring the Social Security Administration in line with laws regulating who gets reported to the National Instant Criminal Background Check System, or NICS, which is used to prevent gun sales to felons, drug addicts, immigrants in the country illegally and others.

A potentially large group within Social Security are people who, in the language of federal gun laws, are unable to manage their own affairs due to “marked subnormal intelligence, or mental illness, incompetency, condition, or disease.”

How does this work? The story does not specify, but explains that it may be similar to the Department of Veterans Affairs, which has blocked firearm ownership for anyone “who has been declared incompetent to manage pension or disability payments and assigned a fiduciary.” Not that the person poses a threat to anyone else, but that they can’t manage a checkbook.

And how many elderly and disabled people would be deprived of the right to keep and bear arms?

About 4.2 million adults receive monthly benefits that are managed by “representative payees.” …

About 2.7 million people are now receiving disability payments from Social Security for mental health problems, a potentially higher risk category for gun ownership. An addition 1.5 million have their finances handled by others for a variety of reasons.

This is absolutely appalling. Depriving elderly and disabled persons of constitutional rights because they are unable to manage their own finances, without any process, is appalling. The Social Security Department has absolutely no expertise in deciding who should or should not own a gun.

As it works for Veterans, you file an appeal after your rights have been violated, and very few have been granted.

But as of April, just nine of 298 appeals have been granted, according to data provided by the VA. Thirteen others were pending, and 44 were withdrawn after the VA overturned its determination of financial incompetence.

Overman is one of the few who decided to appeal.

He is irritable and antisocial, he said, but not dangerous. “I’ve never been suicidal,” he said. “To me that solves nothing.”

More than a year and a half after Overman filed his challenge, the VA lifted its incompetence ruling, allowing his removal from the background check system before the VA ever had to determine whether he should be trusted with a gun.

There is no showing, whatsoever, that these people pose any threat to others.

Though such a ban would keep at least some people who pose a danger to themselves or others from owning guns, the strategy undoubtedly would also include numerous people who may just have a bad memory or difficulty balancing a checkbook, the critics argue.

“Someone can be incapable of managing their funds but not be dangerous, violent or unsafe,” said Dr. Marc Rosen, a Yale psychiatrist who has studied how veterans with mental health problems manage their money. “They are very different determinations.”

Even worse, while this program will do little-to-nothing to keep guns out of the hands of dangerous people, it will have the predictable, and perverse outcome of preventing people with mental health conditions from seeking treatment.

Rosen, the Yale psychiatrist, said some veterans may avoid seeking help for mental health problems out of fear that they would be required to give up their guns. …

Ari Ne’eman, a member of the National Council on Disability, said the independent federal agency would oppose any policy that used assignment of a representative payee as a basis to take any fundamental right from people with disabilities.  “The rep payee is an extraordinarily broad brush,” he said.

I’ve written at some length (here and here) about how depriving disabled persons of guns poses the serious risk of stigmatizing mental illness, and deterring people from seeking medical treatment.

The relationship between guns and mental health is much trickier than those who support gun control laws would have you think. First, most people who have mental health conditions are not dangerous. Second, singling out people with mental health conditions stigmatizes them, and could further harm their mental health. Third, requiring doctors to disclose to the state anyone who may have mental health conditions, with the consequence of depriving them of a civil right, may chill the doctor-patient relationship, and inhibit people who are in need of help from talking to a professional.

New York’s Safe Act requires doctors to report to the state anyone who is “likely to engage in conduct that would result in serious harm to self or others.” Then, as the NY Times reports, the state “rubber stamps” those names and puts them on a no-gun list, where they remain for 5 years. Any existing permit is immediately revoked, and all firearms are seized. Only after the permit is revoked–likely with no notice–can someone go to court and petition a judge to remove the name. Already, over 40,000 people have been added to this list. This program exacerbates all three problems I mentioned above.

The story does not provide specifics, but I think that this language is meant to track 22 U.S.C. 922(d)(h), which provides:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—(4) has been adjudicated as a mental defective or has been committed to any mental institution;

But can a determination by the Social Security Department that someone cannot manage a checkbook amount to being “adjudicated as a mental defective”?  The article suggests that it is not limited to a “court” but includes a “commission,” which means faceless bureaucrats at the Social Security Department.

But the category also includes anybody found by a “court, board, commission or other lawful authority” to be lacking “the mental capacity to contract or manage his own affairs” for a wide variety of reasons.

This action needs to be halted immediately. Without any showing that someone is dangerous, you cannot take away their constitutional rights. Not even Heller’s dicta about limitations for those who are “mentally ill” can include people who can’t manage their checkbooks. The Disability Rights community should be up in arms (no pun intended) about this outrageous stigmatization of those with mental illness.  This is shameful.

I couldn’t recommend enough Bill Kristol’s 90-minute interview with Justice Alito. The interview touches on his path to the Supreme Court (that time when his daughter told him “Andy Card from the White House called”), how cases are decided, why Justice Alito has often dissented in First Amendment cases, why he dissented from the majority’s “post-modern” dissent in Obergefell, and why (alas) he picked the Phillies over the Yankees. The transcript of the interview is here.

One of the more revealing aspects of the discussion focused on how a case goes from arguments to conference to decision, and how far backwards Justice Alito will bend before he fractures and issues dissent.

First, Justice Alito said “in the typical case,” the Justices don’t talk before arguments.

In the typical case, I will not talk to any of my colleagues about the case before we hear the argument.

Importantly, he stresses this is “generally not done,” leaving open the possibility that it is done sometimes.

There’s no rule against doing it, but it’s just generally not done as matter of tradition or practice or efficiency.

But, the clerks do chat:

On the Supreme Court, the law clerks are very free to talk to each other so my law clerks usually have a sense of what the law clerks in the other chambers are thinking about the case but that’s not necessarily the same thing that the Justices are thinking about the case.

Second, Justice Alito describes the conference process:

The procedure at the conference is pretty formal. The Chief Justice will start and he’ll say, “Okay, the first case is Jones v. Smith, and this is what it’s about and this is what I think we should do. I think we should affirm; I think we should reverse.” … We have a rule that nobody can speak a second time until everybody has spoken once. So we make the complete circuit.

This is a point I got wrong in Unprecedented, based on some inaccurate information I received. I wrote that the Chief voted last at conference. This made for a dramatic scene with the Chief’s fluctuating vote in NFIB coming last. Alas, I was incorrect. If the book ever gets to a second printing, I’ll fix it.

Third, Justice Alito stressed the importance of taking good notes at conference:

. So we have to take – we all take notes. And it’s pretty important to take good notes, particularly if you’re going to be assigned the opinion because you need to try to remember exactly what at least four of your colleagues think about the case and if you draft an opinion and you circulate it, you want at least four justices to agree with you or else it’s not going to be the opinion of the Court. It’s important to either have a good memory of what was said or take good notes.

Fourth Justice Alito describes what happens if there is not a unified five-vote bloc:

But in any event we go around the table and once we’ve made the complete circuit, usually we’ll know how the case is going it be decided and the basic rationale of the case. Sometimes after we’ve gone around, well, the worst case in terms of efficiency is where there isn’t a majority for any judgment. There might be three votes to affirm, three votes to vacate, three votes to reverse. So then we have to try to see if there is some position, there’s some judgment that at least five could agree on. That’s pretty infrequent, that happens pretty infrequently.

But more frequently, once you’ve gone around it’s not clear that there is a rationale that five will agree on. There may be, let’s say, six-one to affirm but three-one to do it on one ground and three-one to do it on another ground. So again you have try and find sort of the least-common denominator, something that five would agree on. And then sometimes if particularly, if it’s a more controversial case, someone may want to answer something that was said by someone who spoke later so there may be a little bit of back-and-forth debate but it’s not an open-ended discussion, and it doesn’t go on for a very extended amount of time.

 

Fifth, Justice Alito discusses the phenomenon of equal assignments–which SCOTUS haruspices use to predict the authorship of opinions.

Not unless that’s the Friday at the end of the two-week session. So at the end of two weeks, usually we will have heard 12 cases, and Friday afternoon, an opinion assignment list will come around. So of the 12, we will almost always get at least one, and then three Justices will get two. So at the end of the year, basically, we’ve all received about the same number of opinions.

Sixth, Justice Alito speaks to the “join” process:

And what I hope is that I will very quickly receive eight memos saying, “This is perfect, you know, don’t change a word.” And it doesn’t always work out that way. …

What I will receive is a memo indicating whether that Justice is going to join the opinion, and I may get a memo that says, “I will join if you make this change and this change and this change.” Or “I join your opinion but I suggest that you make certain changes.” That would be leaving it to the discretion of the author. Or I may get a memo saying, “In accordance with my vote at conference, I’m going to dissent.”

Seventh, during conference, the Justices take an “inventory” of circulating cases:

On the Friday conference, one of the things we do is to do an inventory of the cases where the opinions are circulating. So if I would have circulated an opinion, we’ll go through the list and sometimes at that point someone will say, “I was in the majority at conference, but on the vote, but I’m going to wait and see what the dissent says.” So sometimes that will happen.

Eight, Justice Alito speaks to the phenomenon of one Justice flipping a majority opinion–the votes are not final until the opinion is announced.

And occasionally a decision will flip, you know, maybe once a term or so. Something that was five to four one way ends up being five to four the other way. Someone who was in the majority reconsiders after reading the dissent, thinking about the case, and so it’s not the most efficient thing, but it can happen.

I think this year Justice Thomas broke off Justice Scalia’s opinion in Walker v. Sons of Confederate Veterans and made Justice Breyer’s dissent into a majority opinion.

 

It’s possible a Justice could revoke a “join” just before a decision is to be delivered.

The votes are not final until we go out on the bench to announce the decision. So in theory, on a, let’s say, on a Monday morning when a certain case is ready to be announced someone in the majority could say, “Something came to me over the weekend and I realized my position is wrong and I’m switching my position,” and that’s going to switch the decision.

But that hasn’t happened while Justice Alito was in office.

It hasn’t happened that way, during my time but it could.

Ninth, Justice Alito explains he does not “know of any instance” where the Justices traded votes.

It’s different from what I imagine takes place and is considered to be proper in a legislative body where someone could vote for something that a person doesn’t really believe in in exchange for getting a vote on something else. I don’t know that that’s considered to be unethical behavior by a legislator. …

But on a court, you can’t. You know that’s improper, and I don’t know of any instance where it’s been done. So you can’t trade your vote.

Tenth, Justice Alito talked about how far he was willing to “bend” before breaking off an issuing a dissent:

And I don’t think any of us would actually sign onto something that we don’t believe in. But we are often required to sign on to something that is not exactly what we would prefer. It becomes a hard – one of the hardest things for an appellate judge. It was hard when I started, and it’s still hard sometimes to figure out how far you should bend before you say, “I can’t go any further.” So if someone circulates a majority opinion, and it’s not what you would have written, and you don’t like certain aspects of it, maybe you don’t like the language, how far can you go?

For the purpose of making a majority or for the purpose of just not writing another meaningless separate opinion, how far can you go before you say, “No, I can’t go any further?”

Eleventh, the former Circuit Judge realizes how difficult these fractured opinions are to follow, but insists that at some point, he cannot join an opinion.

It’s a hard line. As a former consumer of Supreme Court opinions when I was on the Court of Appeals what I wanted and what I think all the lower court judges, what all the parties want, the lawyers want, is a pretty clear rule so it’s nice to have a majority opinion. It’s difficult when you have to put together opinions and try to figure out what the holding is.

But on the other hand, sometimes I may get the draft of a majority opinion and I agree with the bottom-line, or it could be a dissent, I agree with the bottom-line and the basic argument, but there may be paragraphs that are based on past decisions from which I’ve dissented. And so it’s kind of hard to, you know, I accept the fact that this case was decided and it’s binding on me, but I still think I was right on that case and it’s hard to sign on to something that is enthusiastic about a position that I thought was incorrect. There are a lot of very hard lines to draw.

What fascinating insights into the opinion-writing process!

 

 

 

 

 

Last year after Hobby Lobby was decided, I raised the point that Congress never delegated to HHS the authority to make any decisions over which religious groups should, and should not receive accommodations. The ACA was entirely silent on this point–in large part because no one anticipated that the government would require Nuns to provide Plan B–and Congress only exempted houses of worship.

This observation got a injection of steroids after King v. Burwell, where the Court rejected the IRS’s qualifications to even issue a rule here because the agency “had no expertise in crafting health insurance policy.” In National Review, I offer an alternate grounds to invalidate the contraception mandate accommodation–HHS had no authority to issue it in the first place because they were not qualified!

Here is the introduction:

Chief Justice Roberts’s latest rewriting of Obamacare was not a complete debacle. Rather, as has become his pattern, the Chief tossed conservatives a consolation prize. The most significant, and underappreciated, aspect of King v. Burwell was that it rejected the received wisdom that the IRS had authority to redefine Obamacare. The agency, the Court found “had no expertise in crafting health insurance policy.” The IRS rule at issue in the case, which affected the price of health insurance for millions in three dozen states, was far beyond the skillset of the Treasury Department. Going forward, King puts another cornerstone of the Affordable Care Act in jeopardy. Because the Department of Health and Human Services has absolutely “no expertise in crafting” exemptions for religious groups from the contraception mandate, its regulations are entitled to no deference. The Supreme Court’s salvation of Obamacare may have also saved the Little Sisters of the Poor.

After King v. Burwell, it’s not clear that HHS has any expertise in crafting the sort of religious accommodations at issue in the unprecedented contraceptive mandate.

Whatever trivial expertise the Treasury Department may have had in “health insurance policy,” HHS had no specialization in minimizing burdens to religious liberty. Zip. Zero. Zilch. Nada. Simply stated, this was “not a case” for HHS from the outset. Indeed, before the ACA was enacted it was inconceivable that HHS would require any employers, let alone religious non-profits, to cover emergency contraceptives. Most of the attention in 2010 was focused on whether Obamacare would be used to publicly fund abortions. In researching my new book, I could not find anyone in the religious-liberties community who was concerned that the law could be used to force religious nonprofits to provide plans with emergency contraceptives. Even pro-life Democrat Representative Bart Stupak, who was a decisive leader in gathering votes to pass the ACA in the House, said that the contraception mandate “clearly violates” his understanding of how Obamacare was designed.

You may recall that Justice Kennedy raised just this point during arguments in Hobby Lobby:

Further, there is no evidence that Congress ever intended for HHS to make such delicate decisions concerning faith. During oral arguments in Burwell v. Hobby Lobby Stores, Justice Kennedy made just this point. He asked the solicitor general “what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Justice Kennedy added, “Shouldn’t we indicate that it’s for the Congress, not the agency, to determine” who gets an exemption under the Religious Freedom Restoration Act? Justice Kennedy is exactly right. Congress did delegate to HHS the authority to determine which drugs should be covered by the contraception mandate. But it did not delegate to HHS the authority to delicately craft accommodations for some religious groups and not others.

From a separation of powers perspective, the entire accommodation is ultra vires, and cannot stand without an “express” delegation of authority from Congress-which there is none.  From the conclusion:

Without having to find that the accommodation violates the Religious Freedom Restoration Act, the Court could more narrowly find that the unqualified agency cannot decide who gets a religious accommodation. The legislature, and not HHS, has to go back to the drawing board to decide how best to provide access to emergency contraceptives while respecting religious liberty. This is a role for Congress, not for HHS trying to play God.

It may be worth an amicus.