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Throughout the debates over the Affordable Care Act, one of President Obama’s largest setbacks was the defeat of the public option. That is, people could effectively buy into Medicaid before the age of 65. Republicans opposed the public option, because they argued that the government could underprice all of the insurance companies, squeeze them out of the market, and put us on the road to singlepayer. Democrats, though they would never say it aloud, wanted the public option for that precise reason. The public option is merely a layover on the way to singlepayer.

Now, with the nomination in hand, Secretary Hillary Clinton has announced her support for the public option. The Times reports:

For months during the Democratic nominating contest, Hillary Clinton has resisted calls from Senator Bernie Sanders to back a single-payer health system, arguing that the fight for government-run health care was a wrenching legislative battle that has already been lost.

But as she tries to clinch the nomination, Mrs. Clinton is lurching to the left on health care and this week took a significant step in her opponent’s direction, suggesting that she would like to give people the option to buy into Medicare.

“I’m also in favor of what’s called the public option, so that people can buy into Medicare at a certain age,” Mrs. Clinton said at a campaign event in Virginia on Monday.

Mr. Sanders calls his single-payer health care plan “Medicare for all.” What Mrs. Clinton proposed was a sort of Medicare for more.

If elected, Clinton push for this in 2017. The presumptive Republican nominee used to support single payer, so who knows.

Today, Chief Judge Garland submitted a questionnaire to the Senate Judiciary Committee. Note, that the Committee didn’t ask him to complete one. As best as I can tell, he simply completed the same questionnaire used by Justice Kagan. In any event, there are a few interesting bits of information.

First, he sketches out (in some detail) the process that led to his nomination after Justice Scalia’s passing on February 16:

On February 29, 2016, I was called by Neil Eggleston, White House Counsel, and Brian Deese, Senior Advisor to the President, to ask whether I was willing to be considered for nomination as an Associate Justice of the Supreme Court. Later that day, I was called by Michael Bosworth, Deputy Counsel to the President; Sarah Baker, Associate Counsel to the President; and Janet Kim, Deputy Associate Counsel to the President. Between that day and the day of my nomination, I had frequent contact with those individuals, as well as occasional contact with Eric Schultz, Principal Deputy Press Secretary; Jacek Pruski, Principal Deputy Associate Counsel to the President; Rakesh Kilaru, Associate Counsel to the President; and Zealan Hoover, Special Assistant to the Senior Advisor to the President. On March 4, I met with Mr. Eggleston, Mr. Deese, and Mr. Bosworth. Later that day, I also met with Ms. Kim and Mr. Pruski. I was interviewed by the President on March 9. On March 14, 2016, the President called to say that he intended to nominate me to the Supreme Court.

Second, Judge Garland “outs” his unsigned Harvard Law Review notes (these were probably in his Circuit-court questionnaire):

 Commercial Speech, Supreme Court, 1975 Term, 90 Harv. L. Rev. 142 (1976) (collaborative student note).

State Action Exemption and Antitrust Enforcement Under the Federal Trade Commission Act, 89 Harv. L. Rev. 715 (1976) (collaborative student note).

Third, he was a research assistant to Charles Nesson from 1975-77, although there he does not list any publications from Nesson that he contributed to. That does not surprise me. He does list several pieces he edited as a research assistant for Phillip Areeda, as well as note that he worked on Justice Brennan’s famous article about state constitutional law.

Fourth, for the last few years, he has hosted the Yale and Harvard Chapters of the American Constitution Society at the D.C. Circuit to answer questions. He does not include any notes or remarks from those visits.

Fifth, he has done a number of events with the Federalist Society, including a panel at the National Lawyers Conventions in 2012, 2008, 2007, and 2005.

Robert Barnes reports on the Chief Justice’s recent speech in Arkansas, where he offered a flawed recounting of one of the most misunderstood Supreme Court decision of all time: Marbury v. Madison.

That separation, Roberts said, is also the lesson to be learned from former chief justices John Marshall — “the greatest hero of our profession” — and Roger B. Taney — “the greatest failure.”

Marshall’s 1803 opinion in Marbury v. Madison established that it is the judiciary’s exclusive province to “say what the law is.” But the genius of Marshall’s opinion, Roberts said, was its finding that the court lacked the power to grant William Marbury’s commission as a justice of the peace.

The decision “was the epitome of restraint,” Roberts said. Marshall said “this is up to Congress to resolve.” He diffused the conflict “by staying out of it.”

Marshall’s decision in Marbury was the “epitome of restraint”? Let me tick off at least five reasons why that statement is flawed.

First, the fact that Marshall even participated in Marbury was perhaps one of the greatest breaches of judicial ethics until Abe Fortas warmed a seat. Marshall should have recused because he was the person who failed to delivery Marbury’s commission on time! Marshall later recused in Martin v. Hunter’s Lessee– because he owned land in Northern Virginia–so he was familiar with the principles of recusal.

Second, if indeed Congress could not expand the original jurisdiction of the Supreme Court, the Court should have issued a one sentence opinion dismissing the case for lack of jurisdiction. How in the world is it “the epitome of restraint” to write a lengthy opinion articulating a constitutional theory of judicial review, when the Court lacked jurisdiction. (Marshall did not create judicial review–read Federalist 78 for starters). This ought to help you understand the Chief Justice’s decision to spend 30 pages writing about the commerce clause in NFIB, only to turn around and rewrite the penalty as a tax.

Third, Marshall (most likely) misread Article III, Section 2, which provides:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Nothing in the text of the Constitution limits the Court’s original jurisdiction to those heads (ambassadors, public ministers, states as a party, etc.). The Vesting Clause of Article III vests the entire judicial power in the Supreme Court:

The judicial Power of the United States, shall be vested in one supreme Court.

I read the Exceptions Clause to suggest that Congress could remove cases from the Court’s original jurisdiction, which implies that Congress could have added to it in the first place. I admit this is not a clear cut issue, but if we are talking about “restraint,” certainly the Court could have interpreted the Constitution in a more flexible way so as not to unnecessarily invalidate the statute.

Fourth, recall that the Judiciary Act of 1789 was one of the first statutes enacted by the first Congress–many of those Representatives and Senators participated in the drafting and ratification of the Constitution. You would think, out of an act of “restraint,” such an august group would be entitled to a due measure of deference when the text of the Constitution does not compel the holding in Marbury.

Fifth, I’m not even convinced that Section 13 of the Judiciary Act of 1789 even purports to expand the Court’s original jurisdiction. Here is the relevant section:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

I think the best way to read this provision is that in cases where the Supreme Court already had jurisdiction, it could issue writs of mandamus. The statute did not attempt to expand the Court’s original jurisdiction. Now, this wouldn’t have helped William Marbury–his appeal would still be dismissed–but the Court didn’t need to invalidate an act of the First Congress, if the text did not so clearly compel that result.

Tell me how on earth this is the “epitome of restraint”: a Justice who should have recused misreads the text of the statute and the Constitution, to invalidate an act of the First Congress, in a case that should have been dismissed for a lack of jurisdiction. These “twistifications” are enough to make your head spin. But this is whom law students venerate? Count me out.

If Marbury v. Madison was truly the epitome of restraint, it should have looked something like this:

Per curiam. Due to a lack of jurisdiction, the writ is dismissed.

Marshall, C.J., recused.

 

Justice Stevens–who has neither officially retired, nor hears cases on the Circuit Court–continues to offer his opinion. During a discussion with Marcia Coyle in New York–after excoriating the Senate for not holding a hearing for Judge Garland–JPS drops this chestnut which I hadn’t heard before.

Asked if there was anything Chief Justice Roberts could do now to fill the vacancy temporarily, perhaps by calling him or another justice out of retirement while the Senate gets its act together, Stevens said he wasn’t sure if there was a legal mechanism available. (Retired justices do sometimes fill in on lower federal courts.) But he recalled a time that he and the late Chief Justice Rehnquist proposed a rule to do just that in the event of an unforeseen Supreme Court vacancy.

“We both were in favor of it, but nobody else on the court was,” Stevens said, to laughter from the audience.

That’s news to me. To be precise, Stevens does not mean Justices who engaged in a full retirement–that is stepped down from their Article III commission pursuant to 28 U.S.C. 371(a). Rather, he means “retired” for purposes of 28 U.S.C. 371(b), which allows Judges to hear a reduced case load under so-called “senior-status.” Query how Stevens, who has never heard a case by designation, but maintains chambers at the Court, and has a law clerk, is in senior status? The short answer–from what I have gathered–is that the Chief Justice approved this arrangement under 28 U.S.C. 371(e)(1).

In any event, JPS is not interested in serving, and DHS has already headed for the hills:

Some have argued that the Supreme Court is required by law to have nine active justices. But even if Roberts interpreted that to mean he could call on a retired justice to serve, Stevens might not be so amenable to the idea.

“I would say no,” the 96-year-old demurred. “I’d reserve the right to say no.”

…

The third living retired justice, David Souter, remains active as an occasional circuit judge but shuns the public spotlight. He is unlikely to step forward with any comment about the Supreme Court’s current troubles.

“From what I know of Justice Souter, he’d probably have a backpack packed and be headed for the White Mountains,” Coyle said.

By the way, I apologize for the blogging slow down the past few days. This past few days have been, well, interesting. In addition to finalizing edits on the book, I have also written a few longer pieces relevant to current events, which you should see shortly.

At Jotwell, Kevin Walsh reviews my co-authored article with Howard Wasserman, The Process of Marriage Equality. I am grateful to Kevin for his thoughtful analysis in Process Failure on the Road to Obergefell.

Here is the introduction:

In The Process of Marriage Equality, Josh Blackman andHoward Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

And the conclusion:

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers viewObergefell more like Brown or more like Roe, the record of the process that led toObergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.