Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Breyer On His Perpetual Dissents

July 2nd, 2013

In remarks at the Aspen Institute, a banged-up Justice Breyer offered some remarks on his propensity to perpetually dissent over and over and over again in the Apprendi line of cases.

Adam Liptak’s Sidebar column,  focuses on Breyer’s Perpetual Dissent (and cites a GMU Law Review article!)

In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

As he commented during Alleyne:

JUSTICE BREYER: I mean, in the one case you can say all that Apprendi did — it never should have been decided; I mean, some of us thought that — because in fact -­

JUSTICE SCALIA: I wonder who that could have been.


Here are his (partially captured) remarks at Aspen:

When a similar issue comes up again and again, At what point do I say alright, I’ve made my point. It’s time to go and change. The law did not take what i said. I don’t want to be in the minority forever. It is a personal question about law.

It seems that he is finished dissenting from Apprendi.


The Rule Against Perpetuities for Perpetual Dissents

May 31st, 2012

In light of Justice Steven’s insistence on perpetually dissenting from Citizens United–a case decided two years ago–as a soon-to-be property prof, I propose a rule against perpetuities for perpetual dissents:

A Justice (whether active or retired) can only complain about an opinion in which they dissented for the term-in-being (that is, the term when the dissent was issued) plus four years or until the next Justice is confirmed (whichever happens first).

This may work for a few reasons.

Generally, an opinion that warrants a perpetual dissent resulted from a sharp 5-4 split. Sure, Brennan and Marshall dissented from *every* death penalty case, but no one could conceivably take those dissents seriously after a while. Stevens is very proud that his dissent was based on a “rule of law“–not some public policy (exactly what characterized Marshall/Brennan dissents).

So, I think it is fair game for a Justice to continue to complain about an opinion until one of two things happens.

First, a new Justice is appointed. That may (or may not) be enough to swing the 5-4 split a different direction.

Or, four years elapses. This would give, presumably, the American people a chance to elect a new President, who can (ultimately) appoint a new Justice to change the direction of the Court.

I recognize this rule isn’t perfect, though frankly it makes a hell of a lot more sense than the actual rule against perpetuities (at this point I plan on teaching it, briefly, but not testing it).

I’ll come back to this later.

Stevens: Scalia is a Textualist Because He is Trying To Promote The Non-Delegation Doctrine, Notwithstanding Whitman v. American Trucking

October 7th, 2014

Never missing a beat, Justice Stevens continues his post-retirement effort to criticize Justice Scalia at every juncture. In his review of Judging Statute by Chief Judge Robert Katzmann in the NY Review of Books, Justice Stevens takes aim Justice Scalia, and “the so-called textualists.”

In short, Stevens argues that Scalia’s textualism is based on some kind of broader constitutional theory grounded in the non-delegation doctrine (!!!). Seriously.

While it is true that Justice Scalia has often expressed his concern about lobbyists’ ability to have an input in the creation of legislative history, I have always thought that those comments were merely a part of his broader objection that rests on his understanding of the Constitution.

In short, allowing members of a legislative committee to draft legislative history that judges cite violates the principle that the legislative power cannot be delegated to non-members of Congress. Stevens doesn’t say it outright, be he suggests that Scalia thinks legislative history is unconstitutional.

Justice Scalia firmly believes that legislative power can only be exercised by Congress. If legislative power cannot be delegated to the executive or to an administrative agency, it surely could not be delegated to a legislative committee, an individual legislator, or a mere committee staff member. …

While Chadha may provide some insights into Scalia’s views, I think it more likely that Scalia is relying primarily on his own views about unconstitutional delegations of legislative power. In the recent bookReading Law: The Interpretation of Legal Texts (2012), which Scalia coauthored with Bryan Garner, they describe legislative power as “nondelegable.”

I really don’t know what to make of this. He is comparing two wildly different principles. On the one hand, you have the non-delegation doctrine which has played almost no role in constitutional litigation since the New Deal. On the other hand, you have textualism, which is a way of reading statutes–both state and federal–to focus on the text. Sure, it is based on the idea that only the idea that is voted on (in the federal context through bicameralism and presentment) should constitute the law. But Stevens is going beyond that. He is arguing that it would be some kind of unconstitutional act for Congress to delegate this power to draft legislative history, and according to Scalia, courts should not condone this unconstitutional act.

When I first started reading this, I thought how could Stevens say this, in light of Scalia’s majority opinion in Whitman v. American Trucking, which effectively buried any meaningful challenges based on the non-delegation doctrine?

Stevens characterizes Scalia’s majority opinion like this:

At page 472 of his opinion for the Court, Justice Scalia framed the issue in these words: “In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency.” And in his conclusion, he summarized the Court’s holding by stating that the statute “does not delegate legislative power to the EPA.”

But then he turns to his brief concurring opinion, joined only by Justice Souter.

The court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is “legislative” but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not “legislative power.” Despite the fact that there is language in our opinions that supports the Court’s articulation of our holding, I am persuaded that it would be both wiser and more faithful to what we have done in delegation cases to admit that agency rulemaking authority is “legislative power.”

In short, Stevens would permit the delegation of legislative power to agencies, so long as there is an “intelligible principle.”

It seems clear that an executive agency’s exercise of rulemaking authority pursuant to a valid delegation from Congress is “legislative.” As long as the delegation provides a  sufficiently intelligible principle, there is nothing inherently unconstitutional about it.

As is often the case, I’m scratching my head. First, why would Stevens revisit this 15 year old concurring opinion that–to my knowledge–hasn’t had any impact on anything? Second, what does this have to do with textualism? Scalia’s opinion invalidated the challenge under the non-delegation doctrine, contra the D.C. Circuit! Why?

There is such a weak connection between Scalia’s views on the non-delegation doctrine, and his preference for textualism.

It seems to me quite likely that Justice Scalia’s categorical opposition to judicial examination of legislative history is strongly influenced by his questionable view that legislative power is categorically “nondelegable.”

Scalia and 7 other Justices, not all of whom are textualists, joined the opinion.

Of course, even if it were nondelegable, I would remain convinced that looking at a committee report in order to better understand what a statute means is just as permissible as looking at a dictionary to accomplish the same objective.

Is he really justifying the use of legislative history based on a repudiation of the non-delegation doctrine? Is right?

As best as I can tell, this book review gave Stevens the opportunity to air his views on 15 year-old concurring opinion that no one remembers or cares about, and criticize Justice Scalia in the process.

As an aside, Stevens also compares Justice Scalia’s refusal to join opinions involving legislative history to Justices Brennan and Marshall’s “perpetual dissent” from death penalty cases.

It is significant that Justice Scalia refuses to join any part of a colleague’s opinion that relies on legislative history. This practice is comparable to that of Justices William J. Brennan and Thurgood Marshall, who would not join opinions in cases involving capital punishment even if the opinions correctly stated the law. They firmly believed that the death penalty was unconstitutional.

This is an absurd comparison. In the face of binding Supreme Court precedent,  which Brennan and Marshall refused to accept, the two continued to disregard stare decisis. Scalia, bound by no precedent, chooses not to join opinions he finds unpersuasive.

The analogy doesn’t even make sense if you accept Stevens’s view that Scalia fails to join legislative history because due to some constitutional vision. The cases involving capital punishment are direct challenges to an execution, based on the 8th Amendment. That is the nature of the case. If Scalia doesn’t join a footnote, that is probably immaterial to the case at hand. The so called “non-delegation” theory of textualism plays no role in the case.

Update: Prof. Chris Green sent me a copy of John Manning’s 1997 article, “Textualism as a Nondelegation Doctrine.” An abstract is on SSRN:

Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors’ statements as authoritative evidence of legislative intent. These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no “genuine” collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the “intent” of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment. While supporting the rejection of committee reports and sponsors’ statements as authoritative evidence of congressional intent, the article contends that these two premises, standing alone, are insufficiently persuasive. Textualist judges routinely rely on extrastatutory sources of meaning — such as agency rules, terms of art, and canons of construction — that do not reflect “genuine” legislative intent and have not undergone the process of legislative enactment. Textualism, therefore, must rest instead on a special constitutional injunction against legislative generation of unenacted texts that are nonetheless to be understood as authoritative. The existence of such an injunction is found to be reflected in the Supreme Court’s modern separation of powers cases. The article concludes that textualism makes sense as an implementation of a core element of the separation of powers — the separation of lawmaking from law-exposition. So understood, textualism powerfully promotes nondelegation principles by prohibiting agents of Congress from dictating the interpretation of vague and ambiguous texts of Congress’s own making. The article suggests that the nondelegation rationale also supplies a limiting principle for textualism: the nondelegation rationale does not foreclose courts from using legislative history if its contents are persuasive on the merits, quite apart from their source. Just as a court can evaluate the substance of a brief or a law review on the merits, it can evaluate a committee report or sponsor’s statement on the merits. And just as a court may not credit legislative history simply because of its source, it need not ignore the contents of the legislative history simply because of their source.

There is no doubt that textualism is consistent with the non-delegation doctrine. But Stevens makes the broader point that ignoring legislative history in all contexts–whether or not an administrative law case is at issue–is demanded constitutionally by the non-delegation doctrine. This is a bridge way too far, notwithstanding Manning’s fascinating article.

Justice Thomas Perpetually Dissents on Georgia v. Randolph

February 25th, 2014

In Fernandez v. California, Justice Thomas pens a perpetual dissent to remind us that he dissented in Georgia v. Randolph, and still disagrees with it.

I join the opinion of the Court, which faithfully applies Georgia v. Randolph, 547 U. S. 103 (2006). I write sepa- rately to make clear the extent of my disagreement with Randolph.

I dissented in Randolph because the facts of that case did not implicate a Fourth Amendment search and never should have been analyzed as such. Id., at 145 (THOMAS, J., dissenting) (“[N]o Fourth Amendment search occurs where . . . the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the ac- cused”). Instead of deciding the case on that narrow ground, the majority in Randolph looked to “widely shared social expectations” to resolve whether the wife’s consent to a search should control over her husband’s objection. Id., at 111. I find no support for that novel analytical approach in the Fourth Amendment’s text or history, or in this Court’s jurisprudence. See id., at 128–131 (ROBERTS, C. J., dissenting). Accordingly, given a blank slate, I would analyze this case consistent with THE CHIEF JUSTICE’s dissent in Randolph: “A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it.” Id., at 128. That is because “[c]o-occupants have ‘assumed the risk that one of their number might permit [a] common area to be searched.’” Ibid. (quoting United States v. Matlock, 415 U. S. 164, 171, n. 7 (1974)). In this case, the trial court found that Rojas’ consent was voluntary, see ante, at n. 2, and petitioner does not contest that Rojas had common authority over the premises. That should be the end of the matter.

Notably, the Chief Justice did not perpetually dissent, as he joined the majority opinion. Nor did Justice Scalia, who dissented in Georgia, but agreed with this case.

Like JUSTICE THOMAS, I believe Georgia v. Randolph, 547 U. S. 103 (2006), was wrongly decided. I nonetheless join the Court’s opinion because it is a faithful application of Randolph.

Wait? Now Ginsburg AND Breyer have to retire!?

November 30th, 2013

I’ve blogged ad nauseum about calls for Justice Ginsburg to retire. It seems whenever things are looking down for Democrats, we hear the same call. Now that the Senate very well may go Republican in 2014, the calls repeat. But this time, they want Breyer to step down too!

From Jonathan Bernstein at The Plum Line (a blog with a “liberal perspective” at the Washington Post), we get the call for both to step down. He first references a recent article by Charlie Savage, which I blogged about the other day.:

The new Senate policy could also shape the career decisions of sitting judges. While the change did not affect the rules for Supreme Court nominations, it set a precedent that could be used to shut down any filibuster for such a nominee as well. Several observers suggested that the prospect might influence decisions by Justices Ruth Bader Ginsburg, 80, and Stephen G. Breyer, 75, about whether to retire in 2014. Still, neither has publicly indicated any desire to time an exit strategically.

I wonder who these observers are. They aren’t speaking with any personal knowledge. They are merely speculating on how recent events may impact the decisions by RBG and SGB to retire.  I can do that. I observe all the time. I observe that RBG won’t give a damn. Breyer, not so sure.

Anyway, Bernstein writes:

Apparently there’s some question about the strategic imperative facing liberal Supreme Court Justices Stephen Breyer an Ruth Bader Ginsburg now that Democratic senators have fought back against Republican obstruction on nominations. Let me clear this up. There’s absolutely no question about it; if they want to secure the principles they have fought for during their careers, the best thing both of these senior liberal justices can do is to retire right now.

For Ginsburg and Breyer to risk their judicial legacy on predictions of the outcomes of these elections is nuts. It’s easy to predict what kind of judges a Republican president would select, but political scientists would tell the justices that there’s no way of predicting any presidential election two or more years in advance.

Yes, both Ginsburg and Breyer could have a dozen, or for all I know two dozen, productive years ahead of them. Yes, they both appear to still be at the top of their games right now. Yes, they would be giving up a lot personally if they stepped down.

But the strategic imperative is just as clear as it is harsh.  If they care about the principles they have worked for, it’s time to step down.

Poor Justice Breyer. He gets injured all the time. Maybe he should take one for the team, so RBG can continue being glamorous?

Come to think of it, what will Justice Breyer’s “legacy” be about? Citing legislative history when the rest of the Court shies away from it? Fighting to prop up the sentencing guidelines through the perpetual dissent when the Court has moved on? Implementing balancing tests that no one can apply? Asking questions that last an entire page in the transcript (the Breyer pages)? What is Breyer’s most significant opinion? His Morrison dissent? Heller dissent? Apprendi dissent?