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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.

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.

Today, Justice Stevens continued his not-quite-so-busy speaking schedule with an address at Washington University in St. Louis, titled “Some thoughts about a former colleague.” The bulk of the speech is dedicated to Stevens and Scalia’s agreement with respect to Booker and Apprendi, and their disagreement on the 8th Amendment and redistricting. But, as has become his habit, Stevens decides to retread old ground, and revisit Heller. He notes that one of his major disagreements with Nino was about “the role of original intent in interpreting the Second Amendment.”

JPS has been keeping up on his reading, and completed “a few days ago,” The Quartet by Joseph Ellis. Starting on p. 21, Stevens quotes a few paragraphs, verbatim, from the final chapter of Ellis’s book. Ellis closes with this sentence:

The recent Supreme Court decision (Heller v. District of Columbia, 2008) that found the right to bear arms an inherent and nearly unlimited right is clearly at odds with Madison’s original intents.”

I read “The Quartet” last year, and winced when I read this sentence. Let’s count the mistakes from the otherwise careful-historian. First, it was District of Columbia v. Heller, not the other way around. Second, Heller did not guarantee an “nearly unlimited right.” Not even close. Third, Justice Scalia’s majority opinion was not premised on the Framer’s original intent, but on the doctrine of original public meaning originalism. It was Justice Stevens’s dissent that sought to apply the long-discredited doctrine of original-intentions.

In Heller, Justice Scalia’s majority opinion demonstrated that the original understanding of the Second Amendment protects an individual right to keep and bear arms, totally apart from militia service. Justice Stevens in dissent did not offer a living-constitutionalist response, arguing that guns do not fit with present-day circumstances. Instead, he ventured on his own originalist journey, trying to demonstrate that the right was tied to militia service. But where he faltered was applying the then-long-discredited original intent strand of originalism. He was about three decades behind the jurisprudential curve. This approach was canonized in an influential speech given by Attorney General Edwin Meese to the American Bar Association, calling for a restoration of a “jurisprudence of original intention.” Over the next decade, however, under the leadership and vision of Justice Antonin Scalia, the jurisprudential movement shifted to ascertaining the original public meaning of terms, rather than the framers purposivist intent. This is a movement that Justice Stevens apparently missed.

Randy Barnett explained Stevens’s miscue in a 2008 WSJ editorial:

Justice Scalia’s opinion is the finest example of what is now called ‘original public meaning’ jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on ‘original intent’; the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a ‘larger context.’ Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using ‘original intent’ or the original principles ‘underlying’ the text to negate its original public meaning.

I made a similar point in a paper I authored for Prof. Joyce Malcom’s class on common law-rights in 2008.

“Rather than ascertaining the original public meaning, [Justice Stevens] focuses almost exclusively on the drafting history, and improperly attempts to guess the intentions of our framers.”

Even with Justice Scalia no longer able to respond, Stevens is still making the same mistakes.

There is a very surreal quality to what I have dubbed Justice Stevens’s rehab tour. In over two-dozen speeches given since his retirement, he continually tells any audience who will listen that he was right and Justice Scalia was wrong. I cannot find any similar example of such behavior from a retired Justice, and always found it bizarre. But now, even with Justice Scalia in the great beyond, Justice Stevens still feels compelled to explain why Nino was wrong.

Update: Tony Mauro discussed the speech, and quoted me, in the National Law Journal:

On the Second Amendment, Stevens said he and Scalia disagreed on “critical points.”

One was whether the framers understood the amendment to protect a right of civilians to use firearms, or the right of states to maintain a militia. In the 2008 case District of Columbia v. Heller, Scalia staked out the first position for the majority, and Stevens embraced the second in dissent.

Defending his point of view on Monday, Stevens quoted from The Quartet, a 2015 book by historian Joseph Ellis about the role of George Washington, Alexander Hamilton, John Jay and James Madison in creating the nation.

Ellis concluded that the Second Amendment was intended to promote state militias, not an individual right. The Heller decision, Ellis wrote, is “clearly at odds with Madison’s original intentions.”

Stevens said he and Scalia also diverged on the broader question of “whether originalism should provide the sole means of interpreting the Constitution.” On that point, Stevens quoted Ellis as saying the leaders of the American Revolution believed that future generations should not regard the words of the Constitution as “sacred script.”

Supreme Court scholar and blogger Josh Blackman wrote in a post Monday that Stevens has criticized Scalia’s position in Heller in more than two dozen speeches since retiring.

“He continually tells any audience who will listen that he was right and Justice Scalia was wrong,”Blackman wrote. “I cannot find any similar example of such behavior from a retired justice, and always found it bizarre. But now, even with Justice Scalia in the great beyond, Justice Stevens still feels compelled to explain why Nino was wrong.”

Today was a fairly hectic day after oral arguments. I didn’t leave the Court until about 11:50, and didn’t get back to Cato until shortly after noon. I had barely an hour to prepare for the Federalist Society call at 1:00, amidst fielding a few calls from reporters. Here are the published media sources so far:

• Guest on To The Point–Undocumented Parents and the Supreme Court, National Public Radio to discuss U.S. v. Texas (April 18, 2016).
• Federalist Society Podcast on U.S. v. Texas (April 18, 2016).

• Quoted in Supreme Court Sharply divided by Obama immigration plan, Houston Chronicle (April 18, 2016).

Opponents of the president’s plan similarly read positive predictions from the justices’ questioning but, if anything, it seemed clear that the court was conflicted.

“The court is quite divided,” said Josh Blackman, a constitutional law professor at South Texas College of Law who filed an amicus brief against Obama’s plan on behalf of the Cato Institute, a libertarian think tank in Washington D.C. “I think there’s a distinct possibility that this case goes to a 4-4.”

• Quoted in Supreme Court’s Take on Immigration Raises Election Stakes, Roll Call (April 18, 2016).

“Regardless what the court does here, the next election will really decide the fate of this immigration policy,” said Josh Blackman, a law professor at the South Texas College of Law in Houston, who filed a brief in the case supporting the challenge to the immigration actions. “It’s not that the case won’t matter, but the outcome of this policy very much hangs in the election.”

As this year’s topsy-turvy presidential election has proved, predictions are difficult at best. Much depends as well on whether Republicans can maintain control of the House and Senate, and how strong majorities are in each chamber.

– See more at: http://www.rollcall.com/news/policy/supreme-courts-take-immigration-raises-election-stakes#sthash.FtqOh4kj.dpuf

• Guest on KURV Radio, McAllen, TX to discuss U.S. v. Texas (April 18, 2016).
• Quoted in Top court tie likely a defeat for Obama, Boston Herald (April 19, 2016).

Roberts seemed to ignore the government’s argument that Texas has no standing to sue. Instead, he was more concerned about whether Obama has the right to push a policy that Congress should have a hand in.

“The fault here lies with the president. This case could have been appealed to the Supreme Court in July of 2015,” said Josh Blackman, a constitutional law professor at South Texas College of Law. “He declined to do that, and that ensured that this will become an election issue.”

And that’s what it’s become, just like the question of whether Obama can nominate a justice to replace Scalia. If Hillary Clinton wins, she’ll likely try to uphold the executive action on immigration and continue to fight through the courts.

If a Republican wins, it will be wiped from the books.

The Supreme Court, still hobbled with eight justices, seems poised to slam the brakes on the order by doing nothing at all.

I will be in the Court tomorrow for oral arguments in U.S. v. Texas. Given that there is at least one opinion to be handed down, and the Court expanded oral arguments for 90 minutes, I may not actually get out of the Court until 11:45 or maybe even 12:00.

At 1:00, I will be participating in a Federalist Society conference call discussing the arguments. The call-in information will be announced tomorrow. At 2:00, I will be a guest on the NPR’s “To the Point.” I am tentatively slated to appear on the PBS News Hour at 6:00, although TV is always fickle, and is subject to change at the last moment.

Here is a roundup of various pre-argument media hits I’ve had in the past few days.

Quoted in Obama amnesty Supreme Court case to test limits of presidential power, The Washington Times (April 17, 2016).

“In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers,” said Josh Blackman, associate professor at the South Texas College of Law, who has followed the case from the start and filed amicus briefs opposing Mr. Obama’s claim of powers.

At issue is the Take Care Clause, which is what scholars call the Constitution’s charge to presidents to “take care that the laws be faithfully executed.” …

Lower courts sided with the states and halted the amnesty on statutory grounds, and never reached the constitutional questions. But the justices, in what Mr. Blackman said was a first, asked both sides to also file briefs on the Take Care Clause.

Quoted in U.S. Supreme Court to hear arguments in immigration case, The Oklahoman (April 17, 2016).

Josh Blackman, a legal expert following the case, said the administration’s best chance of winning may be on the question of the states’ “standing” to sue.

The vacancy created by the death of Justice Antonin Scalia in February could lead to a 4-4 deadlock in the case. If that happens, Blackman said, the federal appeals court order blocking the president’s policy change would remain in effect.

Federalist Society Video explaining U.S. v. Texas (April 17, 2016).

Quoted in “Obama immigration actions face critical day at high court,” The Hill (April 16, 2016).

If the short-handed court splits 4-4, the lower court’s ruling would be left in place, which would virtually guarantee the programs will not go into place before Obama leaves office.

“The 500-pound gorilla is the empty chair of Justice [Antonin] Scalia,” said Josh Blackman, a constitutional law professor at the South Texas College of Law, who helped file a legal brief backing the lawsuit against Obama’s programs.

“It has a significant impact on the outcome of the case. Because we’re down to only eight justices, there is a distinct possibility of a tie.”

…

While Kennedy ruled favorably for Obama in the Arizona case, they are hopeful he will reprise his role in the 2012 Obamacare challenge, when he scolded the 5-4 majority that upheld the law for “a vast judicial overreaching.”

But they have also been scarred by the experience of seeing the Roberts court deliver victories for the president on his healthcare law and immigration in recent years.

“John Roberts breaks my heart every single June,” said Blackman. “Maybe this will be the way he breaks my heart this year. But I don’t know.”

Quoted in Immigration Case Injects Supreme Court Into Election-Year Storm, Bloomberg Politics (April 16, 2016).

People who received deferred-deportation status under Obama might be especially vulnerable because they would have supplied identifying information to the government. For that reason, advocates on both sides say few people might apply for deferred-deportation status until after the election.

The policy “really hinges on the outcome of the next election,” said Josh Blackman, a professor at the South Texas College of Law, who filed a brief backing Texas.

Quoted in Supreme Court to hear Texas’ challenge to DAPA, The Houston Chronicle (April 17, 2016).

Josh Blackman, a constitutional law professor at South Texas College of Law, argues that forcing a state to change its law so that it doesn’t suffer financial loss, however small and regardless of whether it can later be recouped, is enough to give it a claim at the high court.

“In my opinion, Texas has the silver bullet,” said Blackman, who filed an amicus brief against Obama’s plan on behalf of the Cato Institute, a libertarian think tank in Washington, D.C.

Tuesday morning, I will be in class at 9:30 AM.