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At the end of Justice Scalia’s dissent in Alabama Legislative Black Caucus v. Alabama, he dropped the jurisprudential mic.

Accordingly, I dissent.

Much like Rodney Dangerfield, Justice Breyer’s majority opinion gets no respect. Justice Scalia is no stranger to the disrespectful dissent. A quick search on WestLaw for “I Dissent” with no “respect” since 2006 reveals a number of disrespectful dissents (this list is not complete):

1. House v. Bell (2006) (Roberts, C.J., dissenting) (“The evidence as a whole certainly does not establish that House is actually innocent of the crime of murdering Carolyn Muncey, and accordingly I dissent.”
2. Hamdan v. Rumsfield (2006) (Scalia, J., dissenting) (“For the foregoing reasons, I dissent.”).
3. Uttecht v. Brown (2007) (Breyer, J., dissenting) (“For these reasons, I dissent.”).
4. Gonzales v. Carhart (2007) (Thomas, J., concurring) (“I dissent from the Court’s disposition.”).
5. Crawford v. Marion County Election Bd (2008)  (Breyer, J., dissenting) (“For these reasons, I dissent.”).
6. U.S v. Santos (2008) (Breyer, J., dissenting) (“In light of these alternative possibilities, I dissent.”).
7. Boumediene v. Bush (2008) (Scalia, J., dissenting) (“The Nation will live to regret what the Court has done today. I dissent.”).
8. Yeager v. U.S. (2008) (Scalia, J., dissenting) (“Because that result neither accords with the original meaning of the Double Jeopardy Clause nor is required by the Court’s precedents, I dissent.”).
9. Ricci v. DeStefano (2009) (Ginsburg, J., dissenting) (“I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.””).
10. Shady Grove Orthopedia v. Allstate Ins. Co. (2010) (Ginsburg, J., dissenting) (“Because today’s judgment radically departs from that course, I dissent.”).
11. Michigan v. Bryant (2011) (Scalia, J., dissenting) (“Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I dissent.”).
12. Arizona v. United States (2012) (Scalia, J., dissenting) (“Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.).
13. United States v. Windsor (2013) (Scalia, J., dissenting) (“But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.”).
14. E.P.A. v. EME Homer City Generation (Scalia, J., dissenting) (“I dissent.”).
15. Town of Greece v. Galloway (2014) (Breyer, J., dissenting) (“I dissent from the Court’s decision to the contrary.”).
16. Burwell v. Hobby Lobby (2014) (Ginsburg, J., dissenting) (“Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”)

In first place (surprising no one) is Justice Scalia with 8 disrespectful dissents (counting the Alabama case). Second place was Justice Breyer with 4. RBG had had 3. Thomas and the Chief each had one. The Chief’s dissent was in his first year on the Court! Interestingly, Justices Stevens, Souter, Alito, Sotomayor, and Kagan had zero. Again, my research was cursory, and I’m sure I missed some. Please feel free to add others in the comments.

Update: A note in the Harvard Law Review explores the “respectful dissent.”

The respectful dissent is the dominant speech act of the Roberts Court. According to Figure 2, this rhetoric manifested in nearly 70% of the individual principal dissenting opinions handed down during the 2005 to 2009 Terms, at one point rising to an impressive 83.7%. To give a more complete view of dissenting practice, however, this sec- tion focuses not on the default practice, but on those dissents that de- viate from the norm. Ultimately, this discussion of minority dissenting practices will add an important — and otherwise unseen — nuance to the legitimation rationale underlying the Court’s collegial dissents.

As Figure 2 demonstrates, there are two exceptions to the respect- ful dissent. First, there are the “assertive dissents” in which the pro- testing Justice writes only, “I dissent.”108 Here the Justice appropriates the traditional dissenting structure, but foregoes the respectful rhetoric.

Second, there is a broad category of “other,” which includes procedural statements,111 rhetorical variations on the speech act not couched in the language of dissent,112 and — as is sometimes the case — no speech act at all.113 As a threshold matter, the very existence and use of these alternative speech acts does not detract from — but rather adds to — the robustness of the respectful default. A dissenting re- gime without alternatives would be not only artificial, but also imprac- tical and unwise — impractical because not every conflict between dis- senter and majority need elicit a personal statement of disagreement114 and unwise because sustained, unthinking usage of the rhetoric of re- spect might obviate the effect of that speech act.115

And observations:

The implications for the collegial norm and the respectful dissent as legitimating tools are twofold. First, the choice to dissent assertively — to appropriate the form, but not the respectful rhetoric, of the dom- inant speech act — implicitly recognizes the respectful dissent’s ability to legitimate the majority decision. This idea rests on the intuitive claim that an assertive dissent is ultimately an act of protest, a signal from one Justice to the world at large that the majority opinion does not deserve legitimation — that the majority has acted impermissibly and produced significant costs for political society.124 It follows that if the dissenter believes that the use of “I dissent” is to deny or weaken the majority’s legitimacy, the inverse must also be true: to say “I res- pectfully dissent” is to convey legitimacy. In other words, the assertive dissenter has engaged — and therefore embraced — the positive bene- fits of collegial norms and the respectful dialogue through his choice of form and language. Second, this observation further suggests that the dissenting Justice believes that the Court’s legitimacy is, when he writes, relatively secure. If it were otherwise, the Court would not be able to sustain the occasional, vigorous criticism.

H/T Kedar Bhatia

During his annual visit across First Street, Justice Kennedy weighed in on one of our favorite topics–the relationship between judicial review and gridlock. Here is a (really) rough transcript, as I feverishly tried to type down what he was saying (around 4:05 ET).

Some argue that gridlock should effect the way we interpret statutes. That seems to me the wrong proposition. We have to assume that we have 3 fully functioning branches of the government, committed to proceeding in good faith in good faith to resolve the problems of this Republic

I’ll post the complete transcript later when I can. Chris Geidner and Lawrence Hurley also picked up on it.

Update: Here is the transcript from CSPAN closed captions:

AND WE THINK AN EFFICIENT RESPONSIVE LEGISLATIVE AND EXECUTIVE BRANCH IN THE POLITICAL SYSTEM WILL ALLEVIATE SOME OF THAT PRESSURE. WE ROUTINELY DECIDE CASES INVOLVING FEDERAL STATUTES AND WE SAY, WELL, IF THIS IS WRONG, THE CONGRESS WILL FIX IT. BUT THEN WE HEAR THAT CONGRESS CAN’T PASS A BILL ONE WAY OR THE OTHER. THAT THERE IS GRIDLOCK. SOME PEOPLE SAY THAT SHOULD AFFECT THE WAY WE INTERPRET THE STATUTES. THAT SEEMS TO ME A WRONG PROPOSITION. WE HAVE TO ASSUME THAT WE HAVE THREE FULLY FUNCTIONING BRANCHES OF THE GOVERNMENT, GOVERNMENT THAT ARE COMMITTED TO PROCEED IN GOOD FAITH AND WITH GOOD WILL TOWARD ONE ANOTHER TO RESOLVE THE PROBLEMS OF THIS REPUBLIC.

Video is here.

Kennedy’s comments bear on an exchange that came up during King v. Burwell where the SG told the Court that “this Congress” would not fix the ACA if the Court invalidated the IRS Rule. AMK does not seem persuaded by the argument that the Court should consider whether Congress will, or will not fix the law. This does not bode well for the government.

I repeat here something I wrote on argument day in King v. Burwell.

One of the more jarring exchanges today at oral arguments in King v. Burwell was between Justice Scalia and Solicitor General Verrilli. Justice Scalia said that if this statute doesn’t work, Congress can fix it.

We all know the odds of this happening are slim–though reconciliation may be an option to get beyond the filibuster and force the President’s veto–and reflects what Richard Re has called the “Doctrine of One Last Chance.” (I discussed it here in the context of Pruitt v. Burwell). Like in Shelby County, the Court can give Congress a task they know they won’t do. We all know this. But the Solicitor General is not supposed to acknowledge it. But acknowledge it, he did.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­

(Laughter.)

You can’t tell from the transcript, but Verrilli said it very sarcastically, with the stress on “this.” As in, “are you kidding me? This Congress? Fix something? Ha.” I heard a slight chuckle in his voice.

Nancy Pelosi, who was sitting 3 seats away from me, shook her head at this line. It’s okay for Pelosi to make these points, but not the Solicitor General at the lectern.

After the laughter, Verrilli dug his hole deeper.

GENERAL VERRILLI: You know, I mean, of course, theoretically ­­ of course, theoretically they could.

This was also said with a slight chuckle.

Justice Scalia, who seemed visibly offended by this comment, replied sharply.

JUSTICE SCALIA: I ­­ I don’t care what Congress you’re talking about. If the consequences are  as disastrous as you say, so many million people  without ­­ without insurance and whatnot, yes, I think this Congress would act.

I found it entirely inappropriate for the SG to say this. This wasn’t impromptu, but was no doubt a rehearsed line. And it wasn’t necessary to his argument. This was a political comment, not a legal one. It was beneath the Office to dignify these partisan concerns. Verrilli, whom I defended in my book (against the currents) undermined his credibility with these two remarks. He should not have said them.

In an earlier post, I responded to Will Baude’s argument that the Supreme Court could limit the relief to the named plaintiff in King v. Burwell. I noted that under the D.C. Circuit’s precedents, when a court sets aside a rule under the APA, the decision applies nationwide. However, as Will noted in an email, the Supreme Court has not adopted this rationale. The closest the Court came to addressing this issue (recently at least) was in Summers v. Earthland Institute. The fourth question presented, which was not addressed, was whether the district court had the power to issue a “nationwide injunction.” Justice Scalia wrote for the 5-4 decision:

We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate.

However, SG Clement argued in the government brief that APA does not even permit nationwide injunctions, totally apart from the question of whether it was appropriate.

If the court finds that a regulation on which the agency relied in rendering that decision is unlawful (and that its application was not harmless er- ror, see National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2530 (2007)), the proper relief is for the court to hold the site-specific decision unlawful (i.e., to “hold unlawful” the reviewable “agency action”) because it rests on the regulation the court found to be invalid, not to go beyond the confines of the case and invalidate the regulation in all of its potential applications to other site-specific decisions. If the court of appeals in this case had correctly identified the Burnt Ridge Project as the only “final agency action” properly subject to challenge, the appropriate relief (even if the case had remained live) could have extended no further than a declaratory judgment that the decision approving that project was unlawful or an injunction prohibiting petitioners from carrying out that project until the For- est Service had satisfied the requirements the court of appeals found to be imposed by the ARA.  … Absent clear statutory text compelling that asymmetrical result—and the text of 5 U.S.C. 706 contains nothing remotely so requiring—the court of appeals plainly erred in approv- ing a nationwide injunction.

The SG also makes something of an equitable argument, explaining that nationwide injunctions impede the ordinary route of review through the Circuits:

Construing the APA to require a nationwide in- junction in cases like this one would also impede the usual process by which disputed legal issues are consid- ered by different circuits before (if necessary) being resolved by this Court . . . The Court has thus recognized that, as a general matter, recurring legal issues involving the federal government should be subject to relitigation in different circuits.

The SG notes that seeking the nationwide injunction forces the government to pursue an appeal in the Supreme Court, rather than allowing the issue to simmer:

The Ninth Circuit’s affir- mance of the nationwide injunction forced the govern- ment either to forgo implementation of 36 C.F.R. 215.4(a) and 215.12(f ) altogether, or to seek this Court’s review of the first court of appeals decision that had ad- dressed the validity of those regulations.17

In a footnote, the SG stresses how this practice allows one Circuit Court to stop other courts nationwide from addressing the issue:

Indeed, if this Court had not granted certiorari to review the Ninth Circuit’s decision in this case, that ruling would have prevented any other court of appeals from considering the question.

Clement makes clear that the government should not be forced into this posture:

Except where Congress has specifically authorized a single lower court to vacate a regulation and resolve such ques- tions on a nationwide basis, this Court’s precedents make clear that the government should not be put to that choice (with the attendant distortion of this Court’s normal ability to defer review, absent relatively unusual factors, until more than one court of appeals has ad- dressed the question). 

I stress the last sentence, because in many respects, the challenges to the individual mandate by 26 states, the challenge to DAPA by 26 states, and the challenge in King v. Burwell, are quite unique. They represent significant challenges to programs with nationwide effects. Allowing the program to go into effect for non-party states, or even the millions not named in the case, creates significant irreparable damages, and renders future equitable relief very difficult. You can’t put the toothpaste back in the tube, as Judge Hanen explained, if DAPA goes into effect in 24 states.

We are witnessing this fact now with King. Recall that Halbig was initially a motion for a preliminary injunction, seeking to enjoin the ACA subsidies before the law went into effect. The district court sat on the case for far too long, rendering that injunction  impossible. As a result, any decision by the Court would result in people who previously received subsidies, on longer being eligible. That is a significant equitable factor that (no doubt) is weighing on the Justice’s.

Will is correct the Court has never adopted the D.C. Circuit’s reasoning on nationwide injunctions. Although, in light of the SG’s own representation, I suspect the Court would find here “relatively unusual factors” concerning the ACA that would counsel in favor of giving relief nationwide.

ACA supporters who have pinned their hopes on Justice Kennedy upholding the ACA to support the principles of federalism should be very, very careful what they wish for. As I argue in National Review, under the joint opinion in NFIB v. Sebelius (which AMK joined), the proper remedy for a coercive statute is to invalidate it in its entirety, not salvage its valid parts.

With the Supreme Court on the brink of invalidating an IRS rule that provides billions of dollars of subsidies in states that did not establish Obamacare exchanges, defenders of the law have suddenly become fair-weather federalists. They argue that the Obamacare regulation must be upheld, because invalidating it would intrude on state sovereignty. Yes, you read that right: Allowing the federal government to expand the reach of Obamacare and its mandates into states that refused to create Obamacare exchanges would promote states’ rights. While this argument may seem crazy on its face, it has emerged as a Hail Mary effort to obtain the blessing of the Court’s perennial swing vote, Justice Anthony M. Kennedy. This plan, however, may seriously backfire and unravel all of Obamacare, not just this provision. If the subsidy scheme is  in fact unconstitutionally coercive to states, the correct remedy is to strike the law in its entirety, not salvage its legitimate parts.  …

If this is how the ACA operates, fair-weather federalists should be very careful what they wish for. Justice Kennedy — the target of this federalism pitch — wrote in the joint dissent in NFIB v. Sebelius that the proper remedy for such a coercive law is not to discard its unconstitutional provisions, but to invalidate it in its entirety. With respect to the “question of remedy” in the face of Obamacare’s coercive Medicaid expansion, Justice Kennedy — joined by Justices Scalia, Thomas, and Alito — wrote that the “most natural remedy would be to invalidate the Medicaid expansion.” All of it, whether a state wanted the additional Medicaid funding or not.

Under the joint opinion, invalidating the Medicaid expansion in its entirety–even in states that wanted the money–was considered a less bold remedy than chopping it up into parts.

Some may argue that invalidating the subsidies for all states goes too far. Not so, said the joint opinion in NFIB: A judicial remedy that “imposes on the Nation” a law that “Congress did not enact . . . can be a more extreme exercise of the judicial power than striking the whole statute and allowing Congress to address the conditions that pertained when the statute was considered at the outset.” Applying this principle to King v. Burwell would mean that no state, even those that had established exchanges, could receive subsidies. Allowing the Court to split the difference with a Solomonic remedy that Congress did not design would amount to a “judicial usurpation.” Rather, if the Court invalidates the provision in its entirety, Congress would get to start with a blank slate, instead of salvaging a judicially created chimera.

Finally, the troubles don’t end here. The day after King v. Burwell, at least one state AG will bring suit alleging that that without the subsidies, the ACA’s core provisions–individual mandate and guaranteed issue–cannot stand. A decision by the Court suggesting that this scheme is coercive will make this future challenge viable.

The trouble for ACA supporters doesn’t end with this case. Even if the Court jettisons the subsidies only in states that did not establish an exchange, you can be certain that some enterprising state attorneys general will file suit immediately. The inevitable multi-state challenge will argue that the ACA as designed cannot exist without the subsidies, one-third of the law’s three-legged stool. As a result, the core provisions of the ACA — the individual mandate and the guaranteed-issue and community-rating provisions — would need to be scuttled as well. If successful, those 37 states would become exempt from all the most burdensome aspects of Obamacare.

I see the “federalism argument” going one of two ways:

Under the best-case scenario for Obamacare supporters, the Court may decide to read the law in such a way as to save the challenged IRS rule. Indeed, such a “saving construction” was effectively how Chief Justice Roberts resuscitated Obamacare’s Medicaid expansion for states that wanted it. But even there, Roberts justified his life preserver to Obamacare on the basis of the fact that the law threatened to withdraw pre-existing funding that states had already agreed to. However, this distinction does not exist for the year-old Obamacare subsidies, which many states have expressly refused. If the severability analysis of the joint opinion in NFIB controls, then supporters of Obamacare have much, much more to fear than the invalidation of the IRS rule. Federalism will sink, rather than save, Obamacare.

Be very careful what you wish for.

In a lengthy discourse on where our administrative state went wrong, Justice Thomas draws the root of many of our problems to the Progressive Era:

Fundamentally, the argument about agency expertise is less about the expertise of agencies in interpreting language than it is about the wisdom of according agencies broad flexibility to administer statutory schemes.6

6 Many decisions of this Court invoke agency expertise as a justification for deference. This argument has its root in the support for administrative agencies that developed during the Progressive Era in this country. The Era was marked by a move from the individualism that had long characterized American society to the concept of a society organized for collective action. See A. Link, Woodrow Wilson and the Progressive Era 1910–1917, p. 1 (1954). That move also reflected a deep disdain for the theory of popular sovereignty. As Woodrow Wilson wrote before he attained the presidency, “Our peculiar American difficulty in organizing administration is not the danger of losing liberty, but the danger of not being able or willing to separate its essentials from its accidents. Our success is made doubtful by that besetting error of ours, the error of trying to do too much by vote.” Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 214 (1887). In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” Id., at 215. Reflecting this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in significant expansions of the administrative state, ultimately culminating in the New Deal. See generally M. Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–1933 (1990).

Thomas adds that fortunately, the Constitution “protects us from ourselves,” regardless of what the Progressives wrought.

“But policy arguments supporting even useful ‘political inven- tions’ are subject to the demands of the Constitution which defines powers and . . . sets out . . . how those powers are to be exercised.” INS v. Chadha, 462 U. S. 919, 945 (1983). Even in the face of a perceived necessity, the Constitution protects us from ourselves. New York v. United States, 505 U. S. 144, 187–188 (1992).

In the end, Justices Scalia, Thomas, and Alito seem like sure votes to overturn Seminole Rock in the appropriate case.

Update: In what appears to be a companion opinion, Justice Thomas alludes to the Progressive Era in his discussion of the non-delegation doctrine:

Or perhaps we deliberately departed from the separation, bowing to the exigencies of modern Government that were so often cited in cases upholding challenged delegations of rulemaking authority.8

8 Much of the upheaval in our delegation jurisprudence occurred dur- ing the Progressive Era, a time marked by an increased faith in the technical expertise of agencies and a commensurate cynicism about principles of popular sovereignty. See Perez v. Mortgage Bankers Assn., post, at 19–20, n. 6 (THOMAS, J., concurring in judgment).