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In Bank Markazi v. Peterson, the majority opinion by Justice Ginsburg, and the dissent by the Chief, spar over the relevance of Dames & Moore v. Regan. This debate is a particularly entertaining, because Roberts was clerking for Justice Rehnquist during the 8 days in which Dames & Moore was written. (I am willing to guess that at a young JRG had something to do with the opinion).

In her majority opinion, RBG justified Section 8772 based on Dames & Moore:

In furtherance of their authority over the Nation’s foreign relations, Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States. See Dames & Moore v. Regan, 453 U. S. 654, 673–674, 679–681 (1981) (describing this history). In pursuit of foreign policy objectives, the political branches have regulated specific foreign-state assets by, inter alia, blocking them or governing their availability for attachment. See supra, at 3–4 (describing the TWEA and the IEEPA); e.g., Dames & Moore, 453 U. S., at 669–674. Such measures have never been rejected as invasions upon the Article III judicial power. Cf. id., at 674 (Court resists the notion “that the Federal Government as a whole lacked the power” to “nullif[y] . . . attachments and orde[r] the transfer of [foreign-state] assets.”).

The Chief would have none of this, explaining Dames & Moore was limited only to the facts of that case.

The majority suggests that Dames & Moore supports the validity of §8772. But Dames & Moore was self- consciously “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). The Court stressed in Dames & Moore that it “attempt[ed] to lay down no gen- eral ‘guidelines’ covering other situations not involved here, and attempt[ed] to confine the opinion only to the very questions necessary to [the] decision of the case.” 453 U. S., at 661; see also American Ins. Assn. v. Garamendi, 539 U. S. 396, 438 (2003) (GINSBURG, J., dissenting) (“No- tably, the Court in Dames & Moore was emphatic about the ‘narrowness’ of its decision.”).

Oh, the good ‘ole “restricted railroad ticket” argument. That is, the ruling here only applies to this case, and nothing else. The Court tried a similar approach in Bush v. Gore, explaining that the decision should not be cited in any other contexts.

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

I have called Bush v. Gore, as well as the cited language in Dames & Moore, an “unprecedent.” Of course, this admonition did not prevent Justice Thomas from citing Bush v. Gore in his solo dissent in Arizona v. Inter Tribal Council of Ariz., Inc. Nor did it prevent RBG from citing Dames & Moore here.

In a footnote, RBG replies to the Chief:

THE CHIEF JUSTICE correctly notes that the Court in Dames & Moore v. Regan, 453 U. S. 654, 661 (1981), urged caution before extending its analysis to “other situations” not presented in that case. Post, at 15. Much of the Court’s cause for concern, however, was the risk that the ruling could be construed as license for the broad exercise of unilateral executive power. See 453 U. S., at 688; American Ins. Assn. v. Garamendi, 539 U. S. 396, 438 (2003) (GINSBURG, J., dissenting). As §8772 is a law passed by Congress and signed by the President, that risk is nonexistent here. 

You see what is going on here? Roberts–who very likely wrote at least part of Dames & Moore–is telling everyone that the opinion ought to be read narrowly. Ginsburg–who is now in the majority–assures everyone that the risks young Roberts worried about are not present here–because we are dealing with a statute, rather than a unilateral executive action– so the Court can rely on Dames & Moore.

Roberts, in defense of the precedent he worked on three decades ago, marshals several more distinguishing points:

There are, moreover, several important differences between Dames & Moore and this case. For starters, the executive action Dames & Moore upheld did not dictate how particular claims were to be resolved, but simply required such claims to be submitted to a different tribu- nal. 453 U. S., at 660. Furthermore, Dames & Moore sanctioned that action based on the political branches’ “longstanding” practice of “settl[ing] the claims of [U. S.] nationals against foreign countries” by treaty or executive agreement. Id., at 679.

Roberts also argues that this statute amounts to “commandeering the courts.”

By contrast, no comparable history sustains Congress’s action here, which seeks to provide relief to respondents not by transferring their claims in a manner only the political branches could do, but by commandeering the courts to make a political judgment look like a judicial one. See Medellín v. Texas, 552 U. S. 491, 531 (2008) (refusing to extend the President’s claims- settlement authority beyond the “narrow set of circum- stances” defined by the “‘systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned’” (quoting Dames & Moore, 453 U. S., at 686)).

This is a phrase I developed in my article, State Judicial Sovereignty, where I discussed the commandeering of the state courts. Here, Roberts extends it to the commandeering of the federal courts.

A fascinating back-and-forth over an opinion Roberts no doubt takes pride in.

During oral arguments in McDonnell v. U.S., Justice Breyer nearly broke his own record with a 51-line Breyer page. Well technically, it was 40 consecutive lines. Then Michael Dreeben interjected “So–” Breyer continued with another 11 lines. I’m not sure how to count it. But in any event, it is still less than his 52-line soliloquy in U.S. v. Texas.

Update: On lines 12-13 of p. 33, I think there may be a typo. Justice Breyer likely meant “knotty” problem, rather than “naughty” problem. Although SGB”s hypos can sometimes be rather anughty. H/T Andrew Joseph on FB.

 

I was in the Court for his 49 lines in Zubik v. Burwell. There were 44 lines in Hosannah-Tabor. In Bond, he spoke for 38 lines uninterrupted. 36 Lines in FERC v. Electric Power Supply Association. He went 32 lines in Medtronic v. Boston Scientific Corp. He had 35 lines in EPA v. EME Homer. In Franchise Tax Bd. of Cal. v. Hyatt, Justice Breyer spoke had 34 lines. Alas, only 27 lines in Zivotofsky.

Today was the last day of scheduled oral arguments during the October 2015 term–and what a wild term it has been! This was also (most likely) the last day of arguments with Solicitor General Donald Verrilli at the helm. As is the usual tradition, the SG steps down before the term begins in an election year. With this last opportunity to make a motion in a morning coat, Verrilli moved for the admission of his wife, Gail Laster.

Mark Walsh has the report:

When the Justices take the bench, there are a small number of lawyers to be admitted to the Supreme Court Bar. One of them is Gail Laster, the wife of U.S. Solicitor General Donald B. Verrilli, Jr. He makes the introduction of his wife, and as usually happens in such cases, everyone chuckles when he says he is satisfied that she has met the necessary qualifications.

What a great story!

Laster is currently the Director of the Office of Consumer Protection at the National Credit Union Administration.  She previously served as the General Counsel to the Department of Houston and Urban Development and as counsel to the Senate Judiciary and Labor and Human Resources Committees.

 

Few things animate the Chief Justice like encroachments–real or perceived–on the independence of the courts. His wide-ranging decision in Stern v. Marshall is a testament to his strong desire to guard Article III from Article I. Heck, he even used his annual report in 2011 to explain that Article III prohibited Congress from requiring that the Justices abide by the code of ethics. (Speaking of Article III, query whether that was an advisory opinion).

The Chief’s latest defense of Article III came in his dissent, joined by Justice Sotomayor, in Bank Markazi v. Peterson. The case arose from an effort by Congress to enable recovery from an Iranian bank, where pre-existing federal and state law would have precluded such a recovery. Congress enacted a statute that–in the words of Justice Ginsburg’s majority opinion–“‘sweeps away . . . any . . . federal or state law impediments that might otherwise exist’” to bar relief. For example, the bill eliminates sovereign immunity under the Foreign Sovereign Immunities Act of 1976, preempts New York law that would have prevented execution of judgment, and specifically allowed attachment only for this one docketed case.

The dissent argues that Congress was directing the outcome of this case, and this violated the separation of powers.

That question lies at the root of the case the Court confronts today. Article III of the Constitution commits the power to decide cases to the Judiciary alone. See Stern v. Marshall, 564 U. S. 462, 484 (2011). Yet, in this case, Congress arrogated that power to itself. … Contrary to the majority, I would hold that §8772 vio- lates the separation of powers. No less than if it had passed a law saying “respondents win,” Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties’ specific legal disputes to guarantee respondents victory.

This is very similar to his opening in Stern v. Marshall, which charged that a Bankruptcy Court–not an Article III Court–assumed powers reserved for Article III courts:

Although the history of this litigation is complicated, its resolution ultimately turns on very basic principles. Article III, § 1, of the Constitution commands that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That Article further provides that the judges of those courts shall hold their offices during good behavior, without diminution of salary. Ibid. Those requirements of Article III were not honored here.

The Chief’s opinion begins by providing a fascinating historical account of how the colonial legislature often assumed judicial functions.

Throughout the 17th and 18th centuries, colonial legis- latures performed what are now recognized as core judicial roles. They “functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments.” Ibid. They “constantly heard private petitions, which often were only the complaints of one individual or group against another, and made final judg- ments on these complaints.” G. Wood, The Creation of the American Republic 1776–1787, pp. 154–155 (1969). And they routinely intervened in cases still pending before courts, granting continuances, stays of judgments, “new trials, and other kinds of relief in an effort to do what ‘is agreeable to Right and Justice.’” Id., at 155; see Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208, 216–218 (1902) (collecting examples of such laws).

These problematic proceedings led the Framers of the Constitution to distinctly separate the legislative and judicial powers (consistent with the teachings of Montesquieu).

The Revolution-era “crescendo of legislative interference with private judgments of the courts,” however, soon prompted a “sense of a sharp necessity to separate the legislative from the judicial power.” Plaut, 514 U. S., at 221. In 1778, an influential critique of a proposed (and ultimately rejected) Massachusetts constitution warned that “[i]f the legislative and judicial powers are united, the maker of the law will also interpret it; and the law may then speak a language, dictated by the whims, the caprice, or the prejudice of the judge.” The Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, p. 337 (O. Handlin & M. Handlin eds. 1966). In Virginia, Thomas Jefferson complained that the assembly had, “in many instances, decided rights which should have been left to judiciary controversy.” Jefferson, Notes on the State of Virginia 120 (Peden ed. 1982).  …

The States’ experiences ultimately shaped the Federal Constitution, figuring prominently in the Framers’ deci- sion to devise a system for securing liberty through the division of power … Experience had confirmed Montesquieu’s theory. The Framers saw that if the “power of judging . . . were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary.” Montesquieu 157. They accordingly resolved to take the unprecedented step of establishing a “truly distinct” judiciary. The Federalist No. 78, at 466 (A. Hamilton). To help ensure the “com- plete independence of the courts of justice,” ibid., they provided life tenure for judges and protection against diminution of their compensation.

The majority opinion references the Bill of Attainder Clause–as well as the class of one from Village of Willowbrook v. Olech (which I wrote about here)–but that clause no longer has any teeth after Nixon v. GSA.

The Bank’s argument is further flawed, for it rests on the assumption that legislation must be generally applic- able, that “there is something wrong with particularized legislative action.” Plaut, 514 U. S., at 239, n. 9. We have found that assumption suspect:

“While legislatures usually act through laws of gen- eral applicability, that is by no means their only legit- imate mode of action. Private bills in Congress are still common, and were even more so in the days be- fore establishment of the Claims Court. Even laws that impose a duty or liability upon a single individ- ual or firm are not on that account invalid—or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that [the Clause] requires not merely ‘singling out’ but also punishment, see, e.g., United States v. Lovett, 328 U. S. 303, 315–318 (1946), [or] a case [holding] that Congress may legislate ‘a legiti- mate class of one,’ Nixon v. Administrator of General Services, 433 U. S. 425, 472 (1977).” Ibid.27

27Laws narrow in scope, including “class of one” legislation, may violate the Equal Protection Clause if arbitrary or inadequately justi- fied. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (internal quotation marks omitted); New Orleans v. Dukes, 427 U. S. 297, 305–306 (1976) (per curiam).

Roberts responds with a boom: all of these safeguards would be meaningless if Congress could simply direct the courts how to resolve a case:

But such safeguards against indirect interference would have been meaningless if Congress could simply exercise the judicial power di- rectly. The central pillar of judicial independence was Article III itself, which vested “[t]he judicial Power of the United States” in “one supreme Court” and such “inferior Courts” as might be established. The judicial power was to be the Judiciary’s alone.

The Chief describes the law in question here as unprecedented–citing PCAOB–which denies it the regular sort of presumption of constitutionality.

There has never been anything like §8772 before. Nei- ther the majority nor respondents have identified another statute that changed the law for a pending case in an outcome-determinative way and explicitly limited its effect to particular judicial proceedings. That fact alone is “[p]erhaps the most telling indication of the severe consti- tutional problem” with the law. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted). Congress’s “prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed.” Plaut, 514 U. S., at 230.

With a citation to his mancrush, John Marshall, the current Chief explains that the line between the judicial and legislative functions is blurred, but that does not absolve the Court from enforcing it.

I readily concede, without embarrassment, that it can sometimes be difficult to draw the line between legislative and judicial power. That should come as no surprise; Chief Justice Marshall’s admonition “that ‘it is a constitu­ tion we are expounding’ is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution—that of separation of pow- ers.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 596–597 (1952) (Frankfurter, J., concurring) (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819)). But however difficult it may be to discern the line between the Legislative and Judicial Branches, the entire constitu- tional enterprise depends on there being such a line. The Court’s failure to enforce that boundary in a case as clear as this reduces Article III to a mere “parchment barrier[ ] against the encroaching spirit” of legislative power. The Federalist No. 48, at 308 (J. Madison).

Roberts closes with a citation of Justice Scalia’s passionate dissent in Morrison v. Olson (I still rank this as one of Scalia’s most important opinion) and a reference to Madison’s “impetuous vortex.”

At issue here is a basic principle, not a technical rule. Section 8772 decides this case no less certainly than if Congress had directed entry of judgment for respondents. As a result, the potential of the decision today “to effect important change in the equilibrium of power” is “immedi- ately evident.” Morrison v. Olson, 487 U. S. 654, 699 (1988) (Scalia, J., dissenting). Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the win- ners and losers in particular pending cases. Today’s deci- sion will indeed become a “blueprint for extensive expan- sion of the legislative power” at the Judiciary’s expense, Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 277 (1991), feeding Congress’s tendency to “extend[] the sphere of its activity and draw[ ] all power into its impetu- ous vortex,” The Federalist No. 48, at 309 (J. Madison).

When the separation of powers are at risk, the otherwise mild-mannered John Roberts hops into a phone booth and transforms to SuperChief!

I am glad Justice Sotomayor has joined this robust defense of the separation of powers. I hope this serves as a guiding precedent when other structural protections of the Constitution are at issue.

In Heffernan v. City of Paterson, the Court held that a public employee cannot be punished based on the employer’s mistaken belief of the employee’s behavior. Specifically, a police officer cannot be demoted when his employer mistakenly thought he was associating with a political campaign–but he didn’t actually engage in that association. Justice Breyer wrote the majority opinion, with Justice Thomas, joined by Justice Alito in dissent.

Justice Breyer attempts to make a textualist argument to support his holding that a person does not actually have to exercise a First Amendment right in order for there to be a First Amendment violation:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

In other words, the First Amendments focuses on the activity of the government–irrespective of whether a right of free speech exists–while the Fourth Amendment focuses on protecting the right of the people to be secure in their persons. This is fundamentally wrong.

In his dissent, Justice Thomas takes Justice Breyer to school.

The majority tries to distinguish the Fourth Amendment by emphasizing the textual differences between that Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment . . . , the First Amendment begins by focusing upon the activity of the Government”). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Government” by “tak[ing] certain policy choices off the table.” District of Columbia v. Heller, 554 U. S. 570, 636 (2008); see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55– 57 (1913) (recognizing that an immunity implies a corresponding lack of power). Fourth Amendment rights could be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins “Congress shall make no law” does not broaden a citizen’s ability to sue to vindicate his freedoms of speech and assembly.

A very famous constitutional scholar once described the Constitution as “charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.” Of course, that scholar’s name is Barrack Obama. And, this time at least, he is exactly right!

The first eight amendments of the Constitution are all restraints on government, no matter how they are styled. The Constitution does not grant people the rights of free speech, free exercise, the right to bear arms, or the freedom from searches and seizures. These rights pre-exist 1787. (I’ll table for a moment the discussion of whether these are the sorts of rights our creator endows us with). It makes no difference, as Justice Thomas explains, that the First Amendment is framed “Congress shall make no law” and the Fourth Amendment is framed in the passive voice that the right against “unreasonable searches and seizures, shall not be violated.” Both framings–in the active and passive voice–place limitations on the power of Congress to act.

Justice Breyer’s ill-conceived dicta–totally unnecessary to support an otherwise reasonable opinion–fundamentally misconceives the structure of the Bill of Rights. The Court should strike this paragraph before it makes its way into the U.S. Reports, lest it be relied on in different contexts to interpret the First or Fourth Amendments in a dangerous way.