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In his dissent in Dietz v. Bouldin, Justice Thomas rebuked Holmes’s famous repudiation of laws that are only followed because they have been around for a long time.

Justice Holmes famously quipped, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). But old rules often stand the test of time because wisdom underlies them. The common-law rule prohibiting a judge from recalling the jury after it is discharged is one such rule. Even though contemporary jurors are not formally sequestered as they were at common law, they are still subject to significant restrictions designed to prevent undue influ- ence. And in today’s world of cellphones, wireless Inter- net, and 24/7 news coverage, the rationale that undergirds the bright-line rule supplied by the common law is even more relevant: Jurors may easily come across prejudicial information when, after trial, the court lifts their re- strictions on outside information. I would therefore hew to that rule rather than adopt the majority’s malleable multi- factor test for prejudice. I respectfully dissent.

In his dissenting opinion in Williams v. Pennsylvania, Justice Thomas pointed out that Marshall should have recused in Marbury.

Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).

Justice Thomas calls out two of the most overrated Justices of all time. Well done.

The Court’s decision in Puerto Rico v. Sanchez Valle is a fascinating study in the constitutional origins of sovereignty. Justice Kagan, writing for the majority, concluded that Puerto Rico was not a separate sovereign for purposes of the Double Jeopardy Clause. Justice Breyer, dissenting with Justice Sotomayor, countered that Puerto Rico was its own sovereign. The dueling opinions offered competing accounts of the roots of sovereignty, the equal-footing doctrine, and the provenance of Puerto Rico’s 1950 Constitution. What I love so much about this decision–other than Justice Kagan’s wonderful writing–is that the Justices engaged each other on a tough constitutional question, totally apart from the conventional political valances at One First Street. The underlying issue of the Double Jeopardy Clause is trumped by deeper questions of sovereignty.

Before I dive into the opinion, here are a few of Justice Kagan’s most memorable quotations. (Nominate this one for a Green Bag award!):

“The oldest roots of Puerto Rico’s power to prosecute lie in federal soil.”

“We now leave the lofty sphere of constitutionalism for the grittier precincts of criminal law”

“The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecuto­rial authority.”

“And contrary to petitioner’s claim, Puerto Rico’s trans- formative constitutional moment does not lead to a different conclusion.”

“But one power Congress does not have, just in the nature of things: It has no capacity, no magic wand or airbrush, to erase or otherwise rewrite its own foundational role in conferring political authority. Or otherwise said, the delegator cannot make itself any less so—no matter how much authority it opts to hand over.”

Kagan derives the notion of sovereignty from the source of the polity’s authority. To illustrate this point, she uses the example of two sets of lines: Are they parallel, or do they intersect? This is such a simple, but powerful image, to convey a fairly difficult doctrine.

Whether two prosecuting entities are dual sovereigns in the double jeopardy context, we have stated, depends on “whether [they] draw their authority to punish the offender from distinct sources of power.” Heath, 474 U. S., at 88. The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecuto­ rial authority. If two entities derive their power to punish from wholly independent sources (imagine here a pair of parallel lines), then they may bring successive prosecu­ tions. Conversely, if those entities draw their power from the same ultimate source (imagine now two lines emerging from a common point, even if later diverging), then they may not.3

But Kagan does not stop there. She suggests a historical basis for the rule–in short, it is easier to apply. Using a seven-factor test to determine sovereignty (as does Justice Breyer in dissent) creates far too much uncertainty about the scope of the double jeopardy clause. A bright-line rule eliminates that difficulty.

 The Court has never explained its reasons for adopting this histori­cal approach to the dual-sovereignty doctrine. It may appear counter­ intuitive, even legalistic, as compared to an inquiry focused on a gov­ernmental entity’s functional autonomy. But that alternative would raise serious problems of application. It would require deciding exactly how much autonomy is sufficient for separate sovereignty and whether a given entity’s exercise of self-rule exceeds that level. The results, we suspect, would often be uncertain, introducing error and inconsistency into our double jeopardy law. By contrast, as we go on to show, the Court has easily applied the “ultimate source” test to classify broad classes of governments as either sovereign or not for purposes of bar­ ring retrials. See infra, at 8–11.

Kagan later explains that states, unlike the federal territory of Puerto Rico, draw there authority from a source that predates the Constitution.

Said otherwise: Prior to forming the Union, the States possessed “separate and independent sources of power and authority,” which they continue to draw upon in enacting and enforcing criminal laws. Heath, 474 U. S., at 89. State prosecutions therefore have their most an­ cient roots in an “inherent sovereignty” unconnected to, and indeed pre-existing, the U. S. Congress. Ibid.4

But wait a minute. Beyond the initial 13 states, the 37 other states were admitted pursuant to the authority vested in Congress by the Constitution. In response, Kagan provides a fascinating explication of the so-called Equal Footing doctrine. Her analysis loops in the “equal sovereignty” doctrine discussed in NAMUDNO, but she (pointedly) does not cite Shelby County.

4 Literalists might object that only the original 13 States can claim such an independent source of authority; for the other 37, Congress played some role in establishing them as territories, authorizing or approving their constitutions, or (at the least) admitting them to the Union. See U. S. Const., Art. IV, §3, cl. 1 (“New States may be admit­ ted by the Congress into this Union”). And indeed, that is the tack the dissent takes. See post, at 3–4 (claiming that for this reason the Federal Government is “the ‘source’ of [later-admitted] States’ legisla­ tive powers”). But this Court long ago made clear that a new State, upon entry, necessarily becomes vested with all the legal characteris­ tics and capabilities of the first 13. See Coyle v. Smith, 221 U. S. 559, 566 (1911) (noting that the very meaning of “‘a State’ is found in the powers possessed by the original States which adopted the Constitu­ tion”). That principle of “equal footing,” we have held, is essential to ensure that the nation remains “a union of States[ alike] in power, dignity and authority, each competent to exert that residuum of sover­ eignty not delegated to the United States.” Id., at 567; see Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203 (2009) (referring to the “fundamental principle of equal sovereignty” among the States). Thus, each later-admitted State exercises its authority to enact and enforce criminal laws by virtue not of congres­ sional grace, but of the independent powers that its earliest counter­ parts both brought to the Union and chose to maintain. See Coyle, 221 U. S., at 573 (“[W]hen a new State is admitted into the Union, it is so admitted with all the powers of sovereignty and jurisdiction which pertain to the original States”). The dissent’s contrary view—that, say, Texas’s or California’s powers (including the power to make and enforce criminal law) derive from the Federal Government—contradicts the most fundamental conceptual premises of our constitutional order, indeed the very bedrock of our Union.

This is a fascinating point that I will consider further. The Court in Northwest Austin did not reference the equal-footing doctrine, but I find this to be a satisfying way to ground that decision in the “bedrock” principles of our Union–that states ought to be treated equally, because the root of their authority predates the Constitution itself–even for those latter-added states.

Thomas Colby’s article in the Duke Law Journal, which is not cited here, has a thorough discussion of the equal-footing doctrine and equal sovereignty.

On this view, the equal footing doctrine is just a particular, concrete aspect of a broader and deeper principle. No state, new or old, can have more or less sovereignty than the other states. New states are admitted into the Union on these terms, with the understanding that they, just like the existing states, will now and always be on equal footing and have equal sovereignty with all of the other states. And that means that Congress cannot, even when exercising one of its legitimate powers, enact legislation that treats any of the states (new or old) as unequal sovereigns.

Zachary Price offers a different perspective.

Kagan’s other major constitutional discourse focuses on the provenance of Puerto Rico’s Constitution. She wrote that it was initiated by an act of Congress, and was subject to Congressional review. This was no Philadelphia in 1787.

Congress, in Public Law 600, authorized Puerto Rico’s constitution-making process in the first instance; the people of a territory could not legally have initiated that process on their own. See, e.g., Simms v. Simms, 175 U. S. 162, 168 (1899). And Congress, in later legislation, both amended the draft charter and gave it the indispensable stamp of approval; popular ratification, however meaningful, could not have turned the conven­tion’s handiwork into law.6 Put simply, Congress con­ferred the authority to create the Puerto Rico Constitu­ tion, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors—as it is for the Fed­ eral Government’s. The island’s Constitution, significant though it is, does not break the chain.

 

Justice Breyer rejects this historical approach, and would adopt a 7-factor functional balancing test to determine a polity’s sovereignty. You can read it for yourself if you’d like/ He traces our Anglo-American lineage back to the fictional King Arthur, rather than the actual Magna Carta. (CT managed to cite Magna Carta today–you can too SGB).

We do not trace Puerto Rico’s source of power back to Spain or to Rome or to Justinian, nor do we trace the Federal Government’s source of power back to the English Parliament or to William the Conqueror or to King Arthur. Rather the Court’s statement means that we should trace the source of power back to a time when a previously nonexistent entity, or a previously dependent entity, became independent—at least, sufficiently inde­ pendent to be considered “sovereign” for purposes of the Double Jeopardy Clause.

Justice Breyer is also indifferent to when the 13 states became independent.

As so viewed, this approach explains the Court’s deci­ sions fairly well. The Federal Government became an independent entity when the Constitution first took effect. That document gave to the Federal Government the au­ thority to enact criminal laws. And the Congress that the document created is consequently the source of those laws. The original 13 States, once dependents of Britain, became independent entities perhaps at the time of the Declara­ tion of Independence, perhaps at the signing of the Treaty of Paris, perhaps with the creation of the Articles of Con­ federation. (I need not be precise.) See G. Wood, Creation of the American Republic 1776–1787, p. 354 (1969) (“The problem of sovereignty was not solved by the Declaration of Independence. It continued to be the most important theoretical question of politics throughout the following decade”). And an independent colony’s legislation-creating system is consequently the source of those original State’s criminal laws.

The Supreme Court somewhat addressed this issue in Ware v. Hylton. (Thanks to Julie Silverbrook for reminding me the name of the case).

What an excellent opinion. Go read it!

In Williams v. Pennsylvania, the Chief Justice of the Pennsylvania Supreme Court ruled on a capital case that he participated in three decades earlier as a district attorney. The Due Process Clause required his recusal, the Court held, in light of his “personal involvement” in the case.

The Court’s due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor. For the rea- sons explained below, however, the principles on which these precedents rest dictate the rule that must control in the circumstances here. The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

As soon as I read this, I immediately thought that the majority opinion would also explain that John Marshall–who failed to deliver William Mabury’s commission as Secretary of State–was required by the Due Process Clause of the 5th Amendment to recuse! I was pleasantly surprised that Justice Thomas’s dissent made the same point:

Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided v whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).

It brings me so much joy to see an article titled “Marbury’s Wrongness” published in the U.S. Reports. The old Chief needs to be knocked down a few pegs. Kudos CT. (For why Marbury was wrong, see this post).

Let’s apply the Court’s new-fangled test. Justice Kennedy wrote for the majority:

Nor is there any doubt that Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. The importance of this decision and the profound consequences it carries make it evident that a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion and professional judgment.

Well, it was John Marshall who applied the Great Seal to Marbury’s commission, and this (not delivery) was the final act that made the commission final. (See this amicus brief I wrote about the chronology of Marbury’s commission). Without the seal, Marbury would have had nothing to complain about. I would say that is “significant, personal involvement” with respect to a “critical decision.”

Maybe the heirs of William Marbury can file a motion for reconsideration, and seek the backpay their ancestor was due?

Update: As a treat, Justice Thomas manages to cite Coke’s Institutes, Dr. Bonham’s case, and Blackstone.

At common law, a fair tribunal meant that “no man shall be a judge in his own case.” 1 E. Coke, Institutes of the Laws of England §212, *141a (“[A]liquis non debet esse judex in propiâ causâ”). That common-law conception of a fair tribunal was a narrow one. A judge could not decide a case in which he had a direct and personal financial stake. For example, a judge could not reap the fine paid by a defendant. See, e.g., Dr. Bonham’s Case, 8 Co. Rep. 107a, 114a, 118a, 77 Eng. Rep. 638, 647, 652 (C. P. 1610) (opin- ing that a panel of adjudicators could not all at once serve as “judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfei- ture”). Nor could he adjudicate a case in which he was a party. See, e.g., Earl of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K. B. 1614). But mere bias—without any financial stake in a case—was not grounds for disqualifi- cation. The biases of judges “cannot be challenged,” ac- cording to Blackstone, “[f]or the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose author- ity greatly depends upon that presumption and idea.” 3 W. Blackstone, Commentaries on the Laws of England, 361 (1768) (Blackstone); see also, e.g., Brookes v. Earl of Riv­ ers, Hardres 503, 145 Eng. Rep. 569 (Exch. 1668) (deciding that a judge’s “favour shall not be presumed” merely because his brother-in-law was involved).

Cambridge University Press has released the cover art for my forthcoming book, Unraveled: Obamacare, Religious Liberty, and Executive Power. It will be released in late September or early October (the date is still to be finalized).

The Wall Street Journal reports that Hugh Hefner sold the iconic Playboy Mansion for $200 million, but retained a life estate.

The sale comes with one unusual condition: Mr. Hefner, 90 years old, will be able to remain in the home as long as he lives. After Mr. Hefner’s tenancy ends, Mr. Metropoulos intends to connect the two estates into a combined 7.3-acre compound, a representative for him said.

Hefner’s wife and other heirs will take nothing. When he dies, the purchaser will receive the house in fee simple. But of course you already remembered that from Property, right? I previously blogged about this curious sales arrangement.