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In his dissent from denial of certiorari in County of Maricopa v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, pined for the days when the Supreme Court had mandatory jurisdiction when a Circuit Court invalidated a state statute.

In fact, Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.

Remarkably, in 1982, all nine Justices sent a letter to Rep. Robert Kastenmeier supporting the elimination of mandatory jurisdiction. You can find the letter in House Report No. 100-660, which supported the 1988 Amendments that Justice Thomas referenced. (As well, all Justices in 1978 also signed, which would include Justice Stewart).

SUPREME COURT OF THE UNITED STATES,

Washington, DC, June 17, 1982.

Re H.R. 2406.

DEAR CONGRESSMAN KASTENMEIER: In response to your invitation, we write to express our complete support for the proposals contained in H.R. 2406, substantially to eliminate the Supreme Court’s mandatory jurisdiction. A letter to this effect was signed by all the members of the Court on June 22, 1978. Your invitation enables us again to renew our request for elimination of the Court’s mandatory jurisdiction.

We endorse H.R. 2406 without reservation and urge the Congress its prompt enactment. Our reasons are similar to those presented to the Senate on June 20, 1978 by Solicitor General Wade McCree, Assistant Attorney General Daniel J. Meador, Professor Eugene Gressman and others. We also agree with the Freund Committee’s recommendation urging the elimination of the Supreme Court’s mandatory jurisdiction; that report was presented to your subcommittee in the summary of 1977 during the hearings held on the State of the Judiciary. At those hearings Professor Leo Levin and former Solictor General Robert Bork also testified in favor of the elimination of the Court’s mandatory jurisdiction.

The present mandatory jurisdiction provisions permit litigants to require cases to be decided by the Supreme Court of the United States without regard to the importance of the issue presented or their impact on the general public. Unfortunately, there is no correlation between the difficulty of the legal issues presented in a case and the importance of the issue to the general public. For this reason, the Court must often call for full briefing and oral argument in difficult issues which are of little significance. At present, the Court must devote a great deal of its limited time and resources on cases which do not, in Chief Justice Taft’s words, “involve principles, the application of which are of wide public importance or governmental interest, and which should be authoritatively declared by the final court.”

This is acutely important as we close a Term with the highest number of filings in history. The more time the court must devote to cases of this type the less time it has to spend on the more important cases facing the nation. Because the volume of complex and difficult cases continues to grow, it is even more important that the Court not be burdened by having to deal with cases that are of significance only to the individual litigants but of no “wide public importance.”

Attached in the appendix is a table showing the recent growth of filings at the Supreme Court. Also attached are statistical tables covering the October 1986 and 1980 Terms. These tables reveal that during the 1980 Term, thirty-six percent of the cases decided by the Court were cases arising out of mandatory jurisdiction. The percentage of mandatory jurisdiction cases has decreased since 1976, chiefly because of the action taken by Congress to confine the jurisdiction of three-judge federal district courts. Further decline in the percentage of mandatory jurisdiction cases is not expected however, since the curtailment of three-judge court cases has by now been reflected in the Court’s caseload. The remaining burdens posed by the mandatory jurisdiction provisions still on the books are nevertheless substantial and continue to cause the Court to expend its limited resources on cases that are better left to other courts.

It is impossible for the Court to give plenary consideration of all the mandatory appeals it receives; to have done so, for example, during the 1980 Term would have required at least 9 additional weeks of oral argument of a seventy-five percent increase in the argument calendar. To handle the volume of appeals presently being received, the Court must dispose of many cases summarily, often without written opinion. Unfortunately, these summary decisions are decisions on the merits which are binding on state courts and other federal courts. See Mandel v. Bradley, 432 U.S. 172 (1977); Hicks v. Miranda, 422 U.S. 332 (1975). Because they are summary in nature these dispositions often also provide uncertain guidelines for the courts that are bound to follow them and, not surprisingly, such decisions sometimes create more confusion than they seek to resolve. The only solution to the problem, and one that is consistent with the intent of the Judiciary Act of 1925 to give the Supreme Court discretion to select those cases it deems most important, is to eliminate or curtail the Court’s mandatory jurisdiction.

Because the Court has to devote a great deal of time to deciding mandatory jurisdiction cases, it is imperative that mandatory jurisdiction of the Court be substantially eliminated. For these reasons we endorse H.R. 2406 and urge its immediate adoption.

Cordially and respectfully,

WARREN E. BURGER.

WILLIAM J. BRENNAN.

BYRON R. WHITE.

HARRY A. BLACKMUN.

WILLIAM H. REHNQUIST.

THURGOOD MARSHALL.

LEWIS F. POWELL.

JOHN P. STEVENS.

SANDRA D. O’CONNOR.

The Justices even included statistics showing the number of Court filings in the previous three terms.

In addition, several of the Justices spoke individually about this change.

Former Chief Justice Burger has been a long-standing supporter of the measure. See, e.g., Letter from Warren E. Burger to Senator Roman Hruska (May 25, 1975) reprinted in “Commission on Revision of the Federal Court Appellate System—Structure and Internal Procedure: Recommendations for Change” (June 1975) at A 222. Justice Brennan has written his support: “Congress could afford the Court substantial assistance by repealing to the maximum extent possible the Court’s mandatory appellate jurisdiction and shifting these cases to the discretionary certiorari docket. A bill to this end is pending in the Congress and every member of the Court devoutly hopes it will be adopted.” Brennan, Some Thoughts on the Supreme Court’s Workload, 66 Judicature 230, 232 (1983). Justice Rehnquist endorsed the idea in Remarks to the Jurists in Residence Program, St. Louis University (April 6–8, 1983). And Justice O’Connor has asked that legislation to eliminate the Court’s mandatory jurisdiction “be passed without delay.” Comments on Supreme Court’s Case Load to the Joint Meeting of the Fellows of the American Bar Foundation and the National Conference of Bar Presidents, New Orleans, La. (Feb. 6, 1983). See also letter from Chief Justice William Rehnquist to Hon. Howell Heflin Nov. 17, 1987.

At least this is something all of the Justices could agree on. Today, not so much.

During oral arguments in Cohen v. California, Chief Justice Burger famously told Melvin Nimmer that the Court was familiar with the facts of the case, and he didn’t need to say “Fuck the Draft.” He promptly ignored that, and said “Fuck” over and over again. Via a story I heard from Floyd Abrams, Nimmer apparently insisted on cursing to convey the impact of those words. In Justice Harlan’s majority opinion, he used the phrase “Fuck the Draft.”

Today’s Court is much more prudish. In Fox v. FCC, Justice Scalia bleeped out the words “fuck” and “shit.”

The first order to this effect dealt with an NBC broadcast of the Golden Globe Awards, in which the performer Bono commented, “`This is really, really, f* * *ing brilliant.'” … The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f* * * `em.” … “Why do they even call it `The Simple Life?’ Have you ever tried to get cow s* * * out of a Prada purse? It’s not so f* * *ing simple.”

In Elonis, the Chief bleeped out several bad words:

Y’all sayin’ I had access to keys for all the f***in’ gates …  Whoever thought the Halloween Haunt could be so f***in’ scary?”

You know your s***’s ridiculous …  Took all the strength I had not to turn the b**** ghost … S***, I’m just a crazy sociopath … that gets off playin’ you stupid f***s like a fiddle … And if you really believe this s***

But Justice Alito used the phrase “ass.”

“‘If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.’ ”

A quick Westlaw search shows that “ass” has been used several times in a recent years, including in McCreary County v. ACLU (“Thou shalt not covet thy neighbour’s house, thou shalt not covet th[y] neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass.”)

In his dissent from denial of certiorari in County of Maricopa v. Lopez-Valenzuela, joined by Justice Scalia, Justice Thomas explains that the lower courts have been much more willing to invalidate state laws than federal laws, and the Supreme Court has been much less likely to grant review.

The Court’s refusal to hear this case shows insufficient respect to the State of Arizona, its voters, and its Consti- tution. And it suggests to the lower courts that they have free rein to strike down state laws on the basis of dubious constitutional analysis. I respectfully dissent. … It is disheartening that there are not four Members of this Court who would even review the decision below. As I previously explained, States deserve our careful consideration when lower courts invalidate their constitutional provisions. Id., at ___ (slip op., at 1). After all, that is the approach we take when lower courts hold federal statutes unconstitutional.

Thomas observes that for most of the Court’s history, Congress required review of any decision that invalidated a state statute.

In fact, Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662. In my view, that discretion should be exercised with a strong dose of respect for state laws. In exercising that discre- tion, we should show at least as much respect for state laws as we show for federal laws.

I’ve never studied why Congress changed this law in 1988. I should research this.

There are strong shades of Thomas’s dissental in the same-sex marriage case, where he faulted the Court for not reviewing the invalidation of the marriage laws.

This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is. Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States.

When the court denies certiorari, it emboldens courts (the 9th Circuit!) to have even less respect for state laws:

Our indifference to cases such as this one will only embolden the lower courts to reject state laws on ques- tionable constitutional grounds.

Thomas questions whatever happened to judicial restraint, citing cases like Ferguson v. Skrupa, West Coast Hotel, Nebbia, and (gasp!) Holmes. This passage will not make the folks at IJ happy:

This Court once emphasized the need for judicial restraint when asked to review the constitutionality of state laws. See, e.g., Ferguson v. Skrupa, 372 U. S. 726, 729 (1963) (noting that this Court should refuse to use the Due Process Clause “to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy”); West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) (refusing to strike down a state regulation on the basis of substantive due process because “the Constitution does not recognize an absolute and uncontrollable liberty”); Nebbia v. New York, 291 U. S. 502, 537–538 (1934) (“Times without number we have said that the legislature is primarily the judge of the necessity of [a regulation], that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power”); Tyson & Brother v. Banton, 273 U. S. 418, 446 (1927) (Holmes, J., dissenting) (“[A] state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution …, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them con- ceptions of public policy that the particular Court may happen to entertain”).

In the end, Thomas concludes that the courts are simply itching to strike down state laws, and because SCOTUS does not grant review, the lower courts are emboldened to keep it up:

But for reasons that escape me, state statutes have encountered closer scrutiny under the Due Process Clause of the Fourteenth Amendment than federal statutes have under the sister Clause in the Fifth Amendment. Davidson v. New Orleans, 96 U. S. 97, 103– 104 (1878) (declining to overturn a state tax assessment on due process grounds, and noting the “remarkable” fact that the Fifth Amendment Due Process Clause had been invoked very rarely since the founding, but that in the short time since the Fourteenth Amendment had been ratified, “the docket [had become] crowded with cases in which [the Court was] asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law”). This Court’s previous admonitions are all too rare today, and our steadfast refusal to review decisions straying from them only undercuts their influence.

Justice Alito also dissented from denial of certiorari, but did not join the dissental. Neither the Chief nor Justice Kennedy would provide a fourth vote.

In Wellness Int’l Network, Ltd. v. Sharif, Justice Sotomayor’s majority opinion and Chief Justice Roberts’s (not really a) dissent sparred over the role of consent with respect to whether assigning certain functions to bankruptcy judges violates Article III.

Chief Justice Roberts views this decision as letting down the Article “guard” and setting the precedent for a further erosion of the judicial power.

By reserving the judicial power to judges with life tenure and salary protection, Article III constitutes “an inseparable element of the constitutional system of checks and balances”—a structural safeguard that must “be jealously guarded.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 58, 60 (1982) (plurality opinion). Today the Court lets down its guard. Despite our prece­ dent directing that “parties cannot by consent cure” an Article III violation implicating the structural separation of powers, Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 850–851 (1986), the majority authorizes litigants to do just that. The Court justifies its decision largely on pragmatic grounds. I would not yield so fully to functionalism. The Framers adopted the formal protec­ tions of Article III for good reasons, and “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” INS v. Chadha, 462 U. S. 919, 944 (1983).

The Chief argues that that the majority opinion allows consent to cure a constitutional violation:

But Sharif has no authority to compromise the structural separation of powers or agree to an exercise of judicial power outside Article III. His consent therefore cannot cure a constitutional violation.

Citing Justice Scalia’s opinion in Noel Canning, the Chief stresses that a willingness to violate the separation of powers decreases, not increases, the presumption of constitutionality:

To the contrary, the branches’ “enthusi­ asm” for the offending arrangements “‘sharpened rather than blunted’ our review.” Noel Canning, 573 U. S., at ___ (SCALIA, J., concurring in judgment) (slip op., at 4) (quot­ ing Chadha, 462 U. S, at 944). In short, because the structural provisions of the Constitution protect liberty and not just government entities, “the separation of pow­ ers does not depend on . . . whether ‘the encroached-upon branch approves the encroachment.’” PCAOB, 561 U. S., at 497 (quoting New York v. United States, 505 U. S. 144, 182 (1992)). …

If a branch of the Federal Government may not consent to a violation of the separation of powers, surely a private litigant may not do so. Just as a branch of Government may not consent away the individual liberty interest protected by the separation of powers, so too an individual may not consent away the institutional interest protected by the separation of powers.

The majority counters that the fact that a party can consent is evidence that there is no Article III violation in the first place, not that the consent cures one.

The principal dissent accuses us of making Sharif’s consent “‘dis- positive’ in curing [a] structural separation of powers violation,” con- trary to the holding of Schor. Post, at 16. That argument misapprehends both Schor and the nature of our analysis. What Schor forbids is using consent to excuse an actual violation of Article III. See 478 U. S., at 850–851 (“To the extent that th[e] structural principle [protected by Article III] is implicated in a given case, the parties cannot by consent cure the constitutional difficulty . . .” (emphasis added)). But Schor confirms that consent remains highly relevant when determining, as we do here, whether a particular adjudication in fact raises constitutional concerns. See id., at 855 (“separation of powers concerns are dimin- ished” when “the decision to invoke [a non-Article III] forum is left entirely to the parties”). Thus, we do not rely on Sharif’s consent to “cur[e]” a violation of Article III. His consent shows, in part, why no such violation has occurred. Cf. Meltzer, Legislative Courts, Legisla- tive Power, and the Constitution, 65 Ind. L.J. 291, 303 (1990) (“[C]onsent provides, if not complete, at least very considerable reason to doubt that the tribunal poses a serious threat to the ideal of federal adjudicatory independence”); Fallon, Of Legislative Courts, Adminis- trative Agencies, and Article III, 101 Harv. L. Rev. 915, 992 (1988) (when the parties consent, “there is substantial assurance that the agency is not generally behaving arbitrarily or otherwise offending separation-of-powers values. Judicial integrity is not at risk”).

The Chief contends that the implications of this ruling are stark:

The impact of today’s decision may seem limited, but the Court’s acceptance of an Article III violation is not likely to go unnoticed. The next time Congress takes judicial power from Article III courts, the encroachment may not be so modest—and we will no longer hold the high ground of principle. The majority’s acquiescence in the erosion of our constitutional power sets a precedent that I fear we will regret. I respectfully dissent. …

he majority sees no reason to fret, however, so long as two private parties consent. Ante, at 14, n. 10. But such parties are unlikely to carefully weigh the long-term structural independence of the Article III judiciary against their own short-term priorities. Perhaps the majority’s acquiescence in this diminution of constitu­ tional authority will escape notice. Far more likely, how­ ever, it will amount to the kind of “blueprint for extensive expansion of the legislative power” that we have resisted in the past. PCAOB, 561 U. S., at 500 (quoting Metropoli- tan Washington Airports Authority v. Citizens for Abate- ment of Aircraft Noise, Inc., 501 U. S. 252, 277 (1991)).

The holding need not be limited to bankruptcy.

The encroachment at issue here may seem benign enough. Bankruptcy judges are devoted professionals who strive to be fair to all sides, and litigants can be trusted to protect their own interests when deciding whether to consent. But the fact remains that Congress controls the salary and tenure of bankruptcy judges, and the Legisla­ ture’s present solicitude provides no guarantee of its fu­ ture restraint. See Glidden Co. v. Zdanok, 370 U. S. 530, 534 (1962) (plurality opinion). Once Congress knows that

Justice Sotomayor has some fun at the expense of the dissenters, and dismisses the gravity of the decision.

The principal dissent warns darkly of the consequences of today’s decision. See post, at 17–20. To hear the princi- pal dissent tell it, the world will end not in fire, or ice, but in a bankruptcy court. … Adjudication based on litigant consent has been a con- sistent feature of the federal court system since its incep- tion. Reaffirming that unremarkable fact, we are confi- dent, poses no great threat to anyone’s birthrights, constitutional or otherwise.

it can assign federal claims to judges outside Article III with the parties’ consent, nothing would limit its exercise of that power to bankruptcy. Congress may consider it advantageous to allow claims to be heard before judges subject to greater legislative control in any number of areas of federal concern. As for the requirement of con­ sent, Congress can find ways to “encourage” consent, say by requiring it as a condition of federal benefits. That has worked to expand Congress’s power before.

Birthright? Here is how the Chief described Article III:

Taken together, these provi­sions define the constitutional birthright of Article III judges: to “render dispositive judgments” in cases or con­ troversies within the bounds of federal jurisdiction. … Instead it holds that a single federal judge, for reasons adequate to him, may assign away our hard-won constitutional birthright so long as two private parties agree. I hope I will be wrong about the consequences of this decision for the independence of the Judicial Branch. But for now, another literary passage comes to mind: It profits the Court nothing to give its soul for the whole world . . . but to avoid Stern claims?

In case you didn’t get the reference (I didn’t), that is Mark 8:37:

“For what does it profit a man to gain the whole world, and forfeit his soul? 37 “For what will a man give in exchange for his soul? 38″For whoever is ashamed of Me and My words in this adulterous and sinful generation, the Son of Man will also be ashamed of him when He comes in the glory of His Father with the holy angels.”

I like when the Chief writes a dissent. He gets sassy, and allows his perfectly-coiffed hair to get tussled.

Justice Kagan’s unanimous decision in Henderson v. United States offers this chestnut for Property professors:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an- other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Usually, the Court focuses on  the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. U.S. (1979). But here, the focus is on “ownership.” Her use of the “thick” stick is an apt image. I will use that in class rather than the bland “essential.”

Kagan is really giving Scalia and Roberts a run for their money. Her writing is so short and crisp. She handles a somewhat-complicated statutory interpretation issue in only 8 pages. There is very little verbiage, and it cuts right to the chase. Every sentence accomplishes what it aims to accomplish. And this property reference is directly on point. Plus the case was argued on 2/24/15. Less than two months to decision. Sharp.