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In the ABA Journal, Bryan Garner muses why the editors of The Bluebook see fit to make small, and largely unnecessary changes every few years:

What I’ve come to realize is that when it comes to The Bluebook, small changes are made for the sake of making small changes. New law students want their predecessors’ work to look obsolete. It’s the theory first elaborated by the social philosopher Thorstein Veblen: planned obsolescence. Veblen postulated that companies deliberately produce consumer goods that will become outdated after limited use so that consumers will have to buy new items more often.

You see the principle at work with smartphone chargers (your old ones won’t work on your new gear), iPod connections (ditto), lightbulbs and even coursebooks. Legal publishers like frequent editions so as to avoid the forgone profits represented by a secondhand market.

And so it is with The Bluebook. Things shift from edition to edition—every five years or so—in response to nothing but the itch of a new crop of law students to leave their mark on their venerated citation guide.

In 2011, I plotted the growth of the Bluebook. Over the last 90 years, over 19 editions, the Uniform System of Citations, commonly known as the Bluebook, has increased from 28 pages to 511 pages.

• 1st Edition (1926): 28 pages
• 2nd Edition (1928): 42 pages
• 3rd Edition (1931): 42 pages
• 4th Edition (1934): 52 pages
• 5th Edition (1936): 52 pages
• 6th Edition (1939): 54 pages
• 7th Edition (1947): 67 pages
• 8th Edition (1949): 87 pages
• 9th Edition (1950): 100 pages
• 10th Edition (1959): 131 pages
• 11th Edition (1967): 126 pages
• 12th Edition (1976): 204 pages
• 13th Edition (1981): 254 pages
• 14th Edition: (1986): 272 pages
• 15th Edition (1991): 366 pages
• 16th Edition (1996): 389 pages
• 17th Edition (2000): 391 pages
• 18th Edition (2005): 415 pages
• 19th Edition (2010): 511 pages

 

I haven’t even bothered to do an updated graph for the 20th edition. The last time I carefully studied a Bluebook was while I was clerking. I don’t even own a copy.

Law school has forever ruined parks for me. Go figure out this sign.

The ABA Conference hosted an all-star panel with four Solicitors General: Kenn Star, Drew Days, Ted Olson, and Don Verrilli. Here are a few of the highlights from posts by the ABA Journal and David Lat.

First, on how they reacted to the position.

Don Verrilli was “asked” to be interviewed while he was working  in the WH Counsel Office.

“When the position came open (in 2010 when Elena Kagan left to become a U.S. Supreme Court justice) I was asked if I wanted to be interviewed and it took me about a nanosecond to say yes.”

You may recall that at the time many expected the job to go to Principal Deputy SG Neal Katyal, who ran the office for a year after Kagan’s nomination to the Supreme Court. Katyal resigned the day Verrilli was appointed.

Ken Starr was implored by the Bush Administration to become SG–what was ostensibly a downgrade from his life-tenured position on the D.C. Circuit.

“I cried like a baby when I accepted the job because I loved the court so much,” said the former federal Court of Appeals judge.

David Lat offered this anecdote:

He loved being a judge and he loved life tenure, so he resisted initial approaches from the White House. But when it became clear that the attorney general and the president wanted him specifically as SG and viewed it as a call to serve the country, he acceded.

Drew Days offered this comical exchange between him and President Clinton:

“The president asked me, what was the relationship between the president and the solicitor general? I thought for a minute and I said you are in the Constitution and the solicitor general is not. He laughed and I got the job.”

Olson was a likely nominee due to his work on Bush v. Gore:

For Ted Olson, connections also helped and complicated matters — he was on the White House’s radar screen because he has successfully represented President George W. Bush in Bush v. Gore, but that also made confirmation more challenging because some Democratic senators didn’t like his involvement in that case.

But this made his Senate hearing contentious.

“I barely squeaked by in my confirmation because many of you may know that in the 2000 Bush vs. Gore presidential race, I was representing then-Gov. Bush in that five-week turmoil in Florida that resulted in the Supreme Court ultimately decid[ed] the presidency,”

Has Ted Olson ever used that sort of language before–that Bush v. Gore “decided the presidency”? He’s been hanging out with David Boies for far too long?!

Second, on establishing the position of the United States.

One of the issues I develop in Unprecedented was the difficulty of the SG to establish an argument for NFIB v. Sebelius, that entailed uniting different interests in HHS, Treasury, and the White House. SG Verrilli speaks to this ordeal:

Verrilli said being the government’s advocate at the podium before the Supreme Court is an important but small part of the solicitor general’s job. “The thing that takes a huge amount of my time is being the decision-maker about what will be the position of the United States in a multitude of cases,” he said. “You might think that an administration will have a relatively unified view of what the government position ought to be on any given matter but it is not that way at all because of the institutional structural differences built into the executive branch. What we’re going to say in court requires at the end of the day for the SG to make a decision after all the agencies have weighed in. Then I have to make a decision. There are going to be winners and losers in that process. It’s not fun exactly, but it’s rewarding to get to participate in,” he said.

David Lat added that Verrilli’s time in the White House has made this process easier:

This is an issue that every SG must wrestle with, according to Verrilli, and where exactly the balance is struck will depend upon the individual SG and his or her relationship with the president. Verrilli said that as a former White House lawyer who is a known quantity to the folks at 1600 Pennsylvania Avenue, he has enjoyed a significant amount of discretion: “they’ve left me alone, and I’ve taken advantage of that.” His approach is to identify the two to three cases each Term where he might be taking a surprising position and call the White House to say, “this is what I’m doing” — not to ask permission, but more of a heads up.

However, Ted Olson explained that he often communicated directly with the White House:

All agreed that while the solicitor general works for the attorney general and the president, the office maintains its independence. Starr said during his term, the protocol was that the White House counsel would not call the solicitor general’s office but instead call the attorney general or the deputy attorney general.  But Olson said had different view.

“As the SG you are working for the attorney general and for the president and it never felt to me that I was independent of those constitutional officers in the performance of my duties” Olson said. “It is important to get input from the president in certain kinds of cases. The SG and the attorney general are making law enforcement legal decisions and not the policy decisions except to the extent where there is overlap.”

 

Finally, in a funny anecdote, Ted Olson explained why he continued to attend all arguments where the United States was at the podium:

When he was solicitor general, Ted Olson made a point of going to every argument in which his office made an appearance because he wanted to learn — how best to argue cases, what worked and what didn’t, and what the justices wanted out of advocates. The justices told Olson that they appreciated his attending the arguments — “and I very soon became addicted to it,” he said.

It is a practice that Don Verrilli maintains today. When Verrilli started as SG, Justice Antonin Scalia told him, “Ted used to come to all the arguments — and we appreciated that.” Point taken, Your Honor.

 

One of the lingering questions from King v. Burwell was why certiorari was granted in the absence of a circuit split–especially if there were only three (not four) votes to reverse. Were there four votes for cert? If so, who was the fourth vote–AMK or JGR? Or maybe there were more than four votes for certiorari, and those Justices took the case knowing the Court would affirm.

RBG may have offered one additional clue in this mystery during her remarks at Duke Law School:

This explanation prompted Siegel to ask why the Court had granted review in three other high-profile cases from last Term – King v. Burwell, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., and Arizona State Legislature v. Arizona Independent Redistricting Commission — that did not involve a circuit split, only to affirm the decision below.  “Are the criteria changing” for granting review, Siegel asked?  Ginsburg’s response, in short, was no, and she reminded Siegel with a smile that, although it only takes four votes to grant certiorari, it takes five votes to prevail.

It seems like there were only four votes for cert, and not five, based on this remark (assuming she was being serious and not whimsical). If so, who was the fourth vote. The Chief or Kennedy? Did Kennedy vote to take the case, with an ounce of uncertainty, and then decide to affirm? Or did Roberts take the case knowing that this challenge should be dismissed as quickly as possible–no sense stretching it out.

The riddle of the SCOTUS sphinx continues. (BTW, earlier this week I saw a baby stumbling around with his grandfather’s cane, and I had a total Riddle of the Sphinx moment).

At the ABA International Human Rights Award Luncheon, John Paul Stevens (who used to be a Justice) offered a Supreme Court roundup with comments on King v. Burwell, Glossip, Obergefell, and for the umpteenth time, McDonald v. Chicago.

First on King v. Burwell, he calls the Chief’s opinion “excellent,” as it is “strong and cumulative evidence supporting the proposition that his votes as a judge are determined entirely by his understanding of what the law requires rather than being influenced by his views of sound policy.” Stevens explains that the phrase “Established by the state” “first appeared in early drafts of the legislation when its authors thought that the only exchanges to be adopted would be those established by the States.” I’m not sure what he means by this sentence. If anything, antecedent bills by Baucus and others used the language “established by the States” in regimes that would have denied certain benefits to states that didn’t take certain actions–proving that this was an approach Congress had considered before, and it wasn’t some sort of scriveners error.  And then Justice Stevens relies on the long-discarded argument: “the drafters’ failure to remove the term ‘exchange established by the state’ should be viewed as a the equivalent of a scrivener’s error.” This is wrong on so many levels, and not even the Solicitor General advanced this argument. Rather, the government argued that the phrase was a “term of art.” Then JPS goes on his now well-worn rant about how Printz was wrong, and that Congress could have required the states to establish an exchange.

Second, Stevens “welcomed” the Court’s decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, as the dissent’s position would have “been tantamount to granting the State Legislature a permanent license to engage in political gerrymandering.” He writes, “just as it is settled that judges should construe statutes to avoid constitutional issues wherever possible, it seems to me that it was entirely appropriate for the majority in that case to treat the product of a popular initiative as the equivalent of a law enacted by the legislature.” Stevens doesn’t seem to much care what the phrase “Legislature” actually means–the fact that it avoids gerrymandering is enough. JPS further faults Justice Scalia’s “hyperbola” in his dissent, in contrast with the Chief’s who “avoids the use of any disrespectful rhetoric – which is another reason why I admire his work even though I frequently disagree with his views.” (The plural of hyperbole is hyperboles. Hyperbola is a geometric figure. More on JPS’s geometry latter).

Third, Stevens discusses Glossip v. Gross, and in particular Justice Breyer’s “careful[]” dissent, which “prompted an oral response by Justice Scalia, which, I am quite sure, was the first time in the Court’s history that a concurring Justice thought it appropriate to make an oral response to a dissenter’s oral statement.” (I thought it was the first time, so I’ll take this as a confirmation). Stevens hopes that the “risk that juries in death cases will not represent a fair cross section of the community” will “provide the basis for a nation-wide solution that brings the United States to the point that most civilized countries reached long ago.”

Finally, Stevens turns toward Obergefell, “the most significant opinion announced during the Term.” JPS was “[s]urprised by [AMK’s] decision to rely primarily on substantive due process rationale rather than the Equal Protection Clause, but after reflection, I am persuaded that he was wise to do so.” Why? The answer may surprise you, as it conflicts with the overwhelming consensus of the Circuit Court opinions: “the difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently.” Yes, the “responsible procreation” defense offers a rational basis to justify traditional marriage laws. Tell that to Judge Posner and all those infertile opposite-sex couples (as Justice Kagan mentioned during arguments in Windsor). In contrast, “the substantive due process doctrine is more appropriate for an all-or-nothing analysis.” Stevens concludes that “the right to marry, like the right to decide whether to have an abortion or the right to control the education of your children, fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.” “Squarely”? JPS really must have struggled with geometry and the square peg/round hole toy as a kid.

Next JPS offers a unifying explanation about Lochner: “Cases overruling Lochner [did not] reject[] the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.” This is sophistry. By the time the Court decided Ferguson v. Skrupa, substantive due process was given a complete burial. However, only a few years later, it was disinterred to justify Justice Douglas’s ethereal decision in Griswold (remember the emanations from the penumbras?). The distinction between economic liberty and other types of rights does not find refuge in Footnote Four of Carolene Products, but must be gleaned by the Warren and Burger Court’s partial resuscitation of the doctrine.

Finally, Justice Stevens pivots to his dissent in McDonald v. Chicago, which Justices Ginsburg, Breyer, and Sotomayor couldn’t even stomach.

Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States. It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse but does include a right to possess a firearm in one’s home. …

I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that the Clause also protects an individual’s right to use a gun. The dissenters have things backward when they argue that it protects the latter but not the former.

Oh where do I even start. I think Justice Thomas’s concurring opinion was correct, and the Privileges or Immunities Clause was the more historically faithful approach to extend the right to keep and bear arms to the states. I also think Justice Scalia’s concurring opinion, where he basically says “get over it,” is flawed. But the argument Stevens advances is nonsensical. What is the basis of the “right to possess a firearm in one’s home.” The 2nd Amendment that specifically references keeping and bearing arms. The “right to choose your spouse”? That comes from some unenumerated right that emanates from the 14th Amendment. Which of the two is more clearly protected by the Constitution? This isn’t even a close call. Even if you take the position–as JPS did in Heller–that the Second Amendment only protects the militia, which extrapolation is less absurd? The 2nd Amendment to guns, or the 14th Amendment to same-sex marriage. It is Justice Stevens who has things “backward.”

P.S. If this post makes its way back to the Supreme Court, a kind request–please scan the speeches in a way so that I can select the text. Blogging these non-OCRd PDFs is a pain.