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The Court just posted the oral arguments transcript for Sorrell v. IMS Health. I will post my analysis here as I read through it.

My prediction: Five solid votes to kill this. Maybe even Sotomayor is on board.

Petitioner

Chief Justice Roberts and Justice Scalia argued about what the purpose of this statute was. Petitioner contended that the purpose is to allow doctors to decide whether “sales representatives will have access to this inside information about what they have been prescribing to their patients.” The Chief and Scalia demurred:

CHIEF JUSTICE ROBERTS: The purpose — the purpose is to prevent sales representatives from contacting particular physicians, right?
…

JUSTICE SCALIA: So what the Chief Justice suggested is right, that the purpose is to stop them from using it in order to market their drugs? . . . Isn’t that the obvious purpose of it? I mean, it doesn’t necessarily make it bad, but — but let’s not quibble over what the purpose is.

Scalia asks if a doctor could simply refuse to talk with a pesky sales representative. The Petitioner disagrees that this is a viable option:

JUSTICE SCALIA: And, and he could achieve the same objective, could he not, by simply refusing to talk to the marketer. When the marketer says, you know, I want to talk to you about a new drug, he says: I don’t talk to drug manufacturers and marketers.

MS. ASAY: He could not achieve the same result, Your Honor. What the record shows is that doctors are particularly concerned about having access to the best information and the most complete information to make decisions for their patients.

Justice Alito, and Justice Kennedy inquire about the so-called “academic detailing” program whereby the information could be made available to research institutions.

JUSTICE
KENNEDY: Could that data be sold to a university for research purposes? The university says: We really want this information to do some research. Could the data be sold to the university for that purpose?
MS. ASAY: Yes, Your Honor, the statute does permit it to be sold for health care research -JUSTICE
KENNEDY: Could the researcher then have a profile, a data bank, that is very helpful to the general public, and sell that to the general public, to the newspapers and so forth?
MS. ASAY: We do not believe so, Your Honor, because of the background regulations that govern this information, including Pharmacy Board Rule 20, which we cited at page 4 of our brief, which also places restrictions on disclosure of patient and practitioner
JUSTICE KENNEDY: No, no. It’s sold to the researcher. The researcher then comes up with a design or database that is very fascinating for a number of reasons. Can that researcher sell it to the New England Journal of Medicine?
…
JUSTICE KENNEDY: The researcher is at the university. The researcher has a data bank or has some results that are very fascinating. The researcher then wants to sell that to the New England Journal of Medicine. What result under the statute?
MS. ASAY: The statute would have required the pharmacy to prevent the further dissemination of the data except for health care research.

Justice Ginsburg followed up to Justice Kennedy’s question, and confirmed that the data sold to data miners, as well as universities.

JUSTICE GINSBURG: You answered my question earlier that they don’t sell it to anyone else. That’s why I was trying to clarify your answer to Justice Kennedy, because you told me the only sale — the pharmacists, they sell this to the data miners, they do not sell it to the other people. But now you’re answering Justice Kennedy’s question, yes, they sell it to universities.
MS. ASAY: I apologize, Your Honor, if I was not clear. As a factual matter, we know absolutely that the pharmacies do not sell it to researchers. I had understood this to be a hypothetical, if they did. But as a factual matter, they do not.

Justice Scalia questions what the difference is between data be sold, and being given away to research institutions, with respect to the pharmacists right to privacy.

JUSTICE SCALIA: How does it increase the prescribing physician’s right of privacy that the data about his prescribing can only be given away but can’t be sold? Does that make him feel happier about his privacy?
MS. ASAY: What it allows the doctor to do is to avoid an intrusive and invasive marketing practice.
JUSTICE SCALIA: He can do that by saying: I don’t want to talk to you.
MS. ASAY: The doctor cannot — can shut off any communication and any information from the
pharmaceutical companies by slamming the door on the detailers, but that’s not necessarily in the interest of doctors or patients. And what this -JUSTICE
SCALIA: That may well be, but then just don’t tell me that the purpose is to protect their privacy. Now you’re arguing a totally different purpose: It makes it easier for the physician to cut off approaches by drug companies that want to sell drugs. If that’s the purpose of this statute, it’s quite different from protecting his privacy. His privacy isn’t protected by saying you can’t sell it but you can give it away.

Scalia, no fan of the right to privacy, notes that this law doesn’t protect the pharmacists privacy. It just makes it difficult for salesmen to market doctors.

And this is where the arguments go meta, and Petitioner provides his definition of the right to privacy.

MS. ASAY: Your Honor, I think the legislature here was using privacy to refer to the autonomy interest that everyone has to some degree in controlling the flow or the use of information about them. This Court recognized in the Reporters Committee case in the FOIA context that there was a privacy interest in the aggregation of information on an FBI rap sheet.

Justice Sotomayor inquires about the right to privacy and the opt-out/opt-in distinction, asking if an opt-out is less restrictive in light of the First Amendment interests.

JUSTICE SOTOMAYOR: Counsel, that -assuming there’s some form of privacy that relates to not being harassed because there’s certainly legislative record of doctors or groups of doctors testifying to feeling harassed by detailers, if Thompson requires a less restrictive method, why does this have to be an opt-in rather than an opt-out? Because isn’t an opt-out I call up and say I, don’t want you to have this information? So isn’t an opt-out less restrictive?
MS. ASAY: An opt-out would not protect the privacy interests as much because it would assume that doctors want to consent. I would like to say that here the statute is -JUSTICE
SOTOMAYOR: Well, but, given the restrictions on speech, why is that a bad thing? Meaning you don’t really intend to tell us that the State couldn’t and wouldn’t — just like we got all of that advertising relating to the opt-out on telephone solicitations, virtually every American knew they could do it if they chose. Maybe some didn’t, but a vast majority did. You can’t really say Vermont’s incapable of telling doctors in a mailing or in some public professional magazine, if you want to opt out, here’s the number?

Justice Ginsburg asks about health care, and stifling the voice of drug producers to help out generic drug producers. CJ Roberts seems quite upset by this argument.

JUSTICE GINSBURG: There’s another -there’s another purpose that I would like you to comment on, and that is the, the State is interested in promoting the sale of generic drugs and correspondingly to reduce the sale of brand name drugs. And if that’s the purpose, why doesn’t that run up against what this Court has said that you can’t, you can’t lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?

MS. ASAY: The State does have an interest in reducing health care costs here. What’s important about this statute is the mechanism by which it allows doctors to decide what information and what kind of marketing they want, and it’s different because what it’s about is access to information in this highly regulated area. It’s the difference between a doctor who prescribes a nonprescription drug and a patient who can take that information, walk into the pharmacy with a $20 bill and leave with their medication, and no one has learned anything about what the doctor prescribed for the patient, about the patient’s concerns, or the doctor’s concerns.

CHIEF JUSTICE ROBERTS: You want to lower – you want to lower your health care costs, not by direct regulation, but by restricting the flow of information to the doctors, by, to use a pejorative word, but by censoring what they can hear to make sure they don’t have full information, so they will do what you want them to do when it comes to prescribing drugs, because you can’t take, I gather, direct action and tell them, you must prescribe generics, right?

Abrogating a constitutional right in order to lower health care costs? The Chief does not seem to accept this line of reasoning. Hrmm… I wonder how this logic would apply to a different case that involves limiting free-rider problems to lower costs by mandating action. Hrm…

This discussion continues:

MS. ASAY: I disagree, Your Honor, for -for two reasons. The statute does not limit any of the information that doctors receive. So the State has not in any way intervened in the information that the pharmaceutical manufacturers can provide to the doctors. They are free -CHIEF
JUSTICE ROBERTS: You’re restricting their — you’re — you’re making it far more burdensome for the manufacturers to reach their intended audience, right? It’s as if I want — there’s a demonstration in town, all right? They need a permit to hold the demonstration. They get the permit. I want to hold a counter-demonstration, and you’re saying it doesn’t make any difference whether I know where their demonstration is going to be or not?
MS. ASAY: I disagree, Your Honor. The -the
ability of drug companies to locate the doctors that are interested in their products is — is not something that calls for this data. It’s very –

Next Justice Kennedy gets in the mix, and asks about limiting a constitutional right (free speech) to lower prices.

JUSTICE KENNEDY: Well, I think maybe you’re being — you were the one that made the argument that the State has an interest in reducing health care costs. I assume that is by selling generics. And the Chief Justice asked you a question: In effect, aren’t you doing this by regulating speech? And you say no, you disagree. I don’t understand that answer that you gave to the Chief Justice.
MS. ASAY: It’s not a restriction on speech because it’s a restriction only on the access to the information that the pharmaceutical manufacturers would like to use to inform their advertising, and it’s only in play if the doctors have objected to the use.

Justice Scalia acknowledges that this law is “making it more difficult for [the manufacturers] to speak by restricting access to information that would enable their speech to be most effective.

Chief Justice Roberts gave Petitioner an additional five minutes for rebuttal in order to answer more questions. The Chief asked whether it was appropriate for the state to determine what speech is effective.

But you’re making a judgment about how their — whether or not their speech will be as effective or not. Don’t you think they’re the ones who are entitled to make that judgment? It doesn’t mean that you’re right or wrong. It just means that we would not rely on your determination that it is — their speech is just as effective. They’re the ones doing the speaking and they think it’s not.
MS. ASAY: Again, Your Honor, I don’t think we disagree that the — the pharmaceutical manufacturers consider this information useful and helpful in targeting their marketing campaigns. The issue in this case is whether their right trumps the right of the doctor.

Wow. That was brutal. No questions from Justice Breyer. One question from Justice Kagan.

Argument of the United States

Justice Scalia asked the SG about whether this actually protects the doctor’s privacy. The United States counters that “privacy” refers more broadly to the control over information.

JUSTICE SCALIA: But it doesn’t protect his privacy. I mean, the — his name and — and the extent of his prescriptions can be given away for a lot of uses. It doesn’t protect his privacy.
MR. KNEEDLER: It — it -JUSTICE
SCALIA: It protect — it enables him to protect himself against drug companies that want to talk to him.
MR. KNEEDLER: And that’s — the term “privacy” is used to embrace that sort of autonomy and control over information. That’s — that’s the way in which we’re -JUSTICE
SCALIA: All right, so long as I know that’s what you’re talking about. When you say “privacy,” you don’t mean the prescriber’s concern that people will know that he prescribed certain drugs. He doesn’t care about that, right.
…

MR. KNEEDLER: But what this allows for -physicians see value to this, but what this allows for is for the physician to say: I don’t want my information to be used by this drug company in a way -sort of inside information about my overall prescribing practices. I would — I would prefer to have a presentation made to me without the information about me, but information about the drugs that might be –

Roberts asks about the state’s determination that some speech should be communicated and others should not.

CHIEF
JUSTICE ROBERTS: I thought our precedents made — indicated that it’s problematic for the State to make a determination about what uses information can be — to what uses information can be put, particularly when it’s an interested party as it is here.
MR. KNEEDLER: Well, what the statute does is allow the physician — or the prescriber to make that choice. It’s information about the prescriber that the prescriber was required to furnish in connection with issuing a prescription.

The United States also distinguishes this case from the traditional advertising commercial speech case, and is similar to Dun & Bradstreet:

It’s also important to recognize that this is very different from the general advertising cases this Court has had under the commercial speech doctrine. This is not public advertising. This I think falls into the camp of Dun and Bradstreet, where you have a — a targeted limited business audience, a — a — really one-on-one. It’s not — it’s not radio or television advertising. It’s one-on-one advertising in which the public interest is — is much more limited, and it’s one-on-one with respect to the very person whose information was first furnished by the physician to the pharmacy, so

Justice Kennedy isn’t buying this, as the policy still allows the state to determine and prohibit the most efficient type of speech.

JUSTICE
KENNEDY: Well, that’s because the pharmaceutical company deems this to be the most efficient. What you’re saying is that the State can prohibit the most efficient sort of speech, whereas if it just had general dissemination which didn’t serve any particular purpose, that would be all right.
MR. KNEEDLER: But it -JUSTICE
KENNEDY: — but if it becomes -becomes focused and important and effective, then the State can prohibit it.

Argument of Repsondents

Tom Goldstein up for the Respondents.

Goldstein read from the briefs, to show, I think, how Petitioner has changed their position from the Second Circuit arguments. Justice Alito commented on this during arguments. Goldstein also found in the record statements from state legislatures saying that the purpose of this statute is to limit “information getting into the hands of the doctor.”

And my favorite, obviously, is number 4: “The marketplace for ideas on medicine safety, the State determined, was operating in conflict with the goals of the State.” They didn’t like the marketplace of ideas.

Goldstein also noted that a purpose of this law was to keep costs down by ensuring that generic drugs were prescribed:

want to start with subsection A because the State helpfully reiterates its goals here. The second half of this paragraph: “The State sought to ensure costs are contained in the private health care sector, as well as for State purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers received unbiased information.” That’s what they’re trying to do. They’re trying to say: We would like the drug companies to have a harder time finding the doctors while the insurance companies and the State have an easy time finding the doctors.

At page 40 of the transcript, Justice Breyer asks his first question (that must be a record!). It is a lengthy question about what would happen if the FTC banned the disclosure of a doctor’s prescriptions as it is false and harmful to trade. Would the Constitution prevent this law? Goldstein punts.

And therefore marketing that focuses upon who the doctor is and what his previous practices were is irrelevant and harmful and false; and therefore we find that it is a false and deceptive practice under section 5 of the Federal Trade Commission Act to use the following prior practices of the doctor in selling him new drugs, because it’s irrelevant and because it’s false and because it’s harmful. And they enact that as a — as a rule of the Federal Trade Commission.
Does the Constitution of the United States forbid them, having made those findings in detail, from controlling advertising to prevent what they have determined is a false and misleading practice?
MR. GOLDSTEIN: I do know — I don’t know, but I do know the First Amendment applies to the rule.
JUSTICE BREYER: Oh, nobody says it doesn’t apply. The question -MR.
GOLDSTEIN: They — they do. I’ve got a couple people -JUSTICE
BREYER: I’m not interested in what they’re saying for the present purposes. I’m interested, surprisingly enough, in what I’m saying.
(Laughter.)
…

JUSTICE BREYER: If the Federal Trade Commission’s specialists and experts in false and deceptive advertising concludes that this is a false and deceptive practice, are you going to say that the Constitution of the United States forbids them from doing that?
MR. GOLDSTEIN: I am, but I’m also going to say that I don’t have to win that argument to win this case.

Goldstein, with an assist from Nino, attempts to distinguish Breyer’s massive hypo, and note that “biased” info (in Vermont) is not the same as “false” (Breyer’s FTC hypo).

MR. GOLDSTEIN: I don’t think that the government can say that because speech is so influential it is false and biased. But I will say, Justice Breyer, in my defense that –
JUSTICE SCALIA: I don’t take “biased” to mean false. “Biased” means one-sided.
MR. GOLDSTEIN: Yes, that’s exactly right. And what we like –
JUSTICE
SCALIA: You state the true facts only on one side and not the other.
MR. GOLDSTEIN: Right.
JUSTICE SCALIA: This case has not been argued as a case restricting false advertising, has it?
MR. GOLDSTEIN: No, it’s a case about restricting true advertising.

Goldstein even gets snarky with Breyer.

JUSTICE BREYER: That’s where I was going.
MR. GOLDSTEIN: Okay.

JUSTICE BREYER: I chose an example that’s beyond your case.
MR. GOLDSTEIN: That’s why it’s called a hypothetical.

Wow.

Goldstein specifically hammers home the First Amendment argument here:

Third, the way the First Amendment works in the marketplace of ideas that so upsets Vermont is that both sides get to tell their story, right? The thing that is supposed to be biased here is that the drug companies have too much money. That is not a basis for restricting speech.
The way it works is if the message is accurate, as the FDA has determined it to be, the drug companies can go make their pitch. Vermont can come along and make the opposite pitch. Terrific. So can insurance companies.
But what you can’t do is have a rule that says one side is going to have a much harder time getting to their audience.

Justice Sotomayor notes that in light of today’s technology, there is “virtually no privacy [that] individuals have.” She repeats her question about an opt-out regime. I think I see where her vote is (concurring in judgment).

JUSTICE SOTOMAYOR: Mr. Goldstein, I — I understand your argument and I have a difficulty. Today with the Internet and with computers, there’s virtually no privacy individuals have. Any transaction you do could be spread across the world instantaneously, and for the longest time catalogs would sell your name and address to other catalogers, and if you bought one product from one company, you would get a thousand catalogs from 50 million others.
Today the industry is policing that, in part to get the State not to intercede, by giving you an opt-out option. And so, if you’re a consumer who doesn’t want a million catalogs, the industry is giving you the right to opt out, so they don’t sell your address.
If there is, as I see, some interest that the State legitimately has in protecting that part of the public who says, I entered into this transaction, I didn’t really want you to sell my name, I didn’t want you to do other things with it, all I did was this transaction, why can’t the State say — there is a difference in my mind between an opt-in and opt-out? Why can’t the State say, your desire to enter a transaction in which you’re doing just that transaction and not others is something we can protect?

Goldstein in reply brings up the proposed Privacy Bill of Rights.

MR. GOLDSTEIN: It can. And let me explain why it is that that rule — and let me typify it for you. There is a pending bill in the Congress called the McCain-Kerry Consumer Protection Act and it does what you’re talking about. It says we’re not just going to
leave it to the industry; we’re going to have a set of governmental rules.

Sotomayor asked whether the state could stop the spread of information:

JUSTICE
SOTOMAYOR: So what you’re saying I think to Justice Kennedy is answering my earlier question by saying the State cannot constitutionally stop the spread of information. So if the State said to the pharmacy, all you can do is fill the prescription, that’s what doctors think pharmacies are doing, and that’s all you can do, you’re saying that’s unconstitutional?
MR. GOLDSTEIN: I am saying that that’s unconstitutional.

Breyer, almost sarcastically, quipped whether something called a “regulated industry” still existed. I could tell he is getting a tad testy.

JUSTICE
BREYER: It used to be true there was something called a regulated industry.
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: And selling was within activity among many.
MR. GOLDSTEIN: Sure.
JUSTICE BREYER: And there were lots of regulations that could be imposed upon selling.
MR. GOLDSTEIN: Sure, right.
JUSTICE BREYER: Are you saying that all those should be reexamined?
MR. GOLDSTEIN: I — I thankfully am not.

Later Goldstein referred to one of Justice Kennedy’s hypos to reply to a question from CJ Roberts. Roberts did not remember Kennedy’s hypo.

MR. GOLDSTEIN: You would take Justice Kennedy’s hypothetical, and I don’t think the Court has to confront whether such a statute would be constitutional because it would be very different.
CHIEF JUSTICE ROBERTS: Would you remind me what Justice Kennedy said?
(Laughter.)
MR. GOLDSTEIN: Sure. He said the rule is the pharmacy can’t give it to anybody.

Arguments concluded at 11:14 a.m. One hour and eight minutes after it started.

This quote jumped out from Justice Sotomayor’s concurring opinion United States v. Tohono O’odham Nation. At issue was the interpretation of 28 U.S.C. s 1500, a statute that prescribes the jurisdiction of the Court of Federal Claims. The Supreme Court 7-1 reversed the Federal Circuit, finding that if a suits filed in District Court and in the Court of Federal Claims are “based on substantially the same operative facts, regardless of the relief sought in each suit.” the suit in CFC is precluded. Sotomayor, joined by Breyer, concurred in judgment only, finding the majority’s opinion was too cramped. Kagan recused.

I am somewhat confused by this passage, particularly the tenses:

Even before today’s decision, §1500 had been described as “anachronistic,” Keene, 508 U. S., at 217, “harsh,” id., at 222 (Stevens, J., dissenting), and “arbitrar[y],” 79 Fed. Cl.645, 659, n. 16 (2007). Judges and commentators have long called for congressional attention to the statute. See, e.g., Keene, 508 U. S., at 222 (Stevens, J., dissenting); Schwartz, supra, at 601. Today’s decision—which unnecessarily considers and repudiates the Casman rule— renders such attention all the more pressing. Under the Court’s construction of §1500, plaintiffs whom Congress has forced to file parallel actions in the CFC and a district court to obtain complete relief must now choose either toforgo relief in the district court or to file first in the districtcourt and risk the expiration of the statute of limitationson their claims in the CFC. I cannot agree that Congress intended, or intends, for §1500 to produce this result. For these reasons, I respectfully concur only in the judgment.

I get the part about what Congress intended (past tense). Sotomayor spends a number of pages in Breyer-esque glory parsing the extensive legislative history of this statute. Fine. But what is this bit about what Congress intends (present tense).

28 U.S.C. s 1500 was enacted in 1868! What possible role could the Congress in 2011 (present tense) have in creating the intent of a statute enacted after the Civil War. No one who was alive in 1868 is alive today. This suggests that modern Congresses have a role to not only interpret old laws, but for their intent and purposes behind such interpretations to have legitimacy. I think this mistakes what a law is. This was duly enacted in 1868. If judges want to look to the legislative history from the good ‘ol Congressional Globe, more power to them. But what difference does it make what Congress today intends? Considering 140 years of post-enactment legislative history seems to be stretching the limits a bit.

Sotomayor even notes that Judges and commentators have called on Congress to amend this statute. This request concedes that Congress (in the present) has actively decided not to modify this law. If anything, the intent of Congress (present tense) is to leave the statute as is. This would seem to bolster the majority’s opinion.

One observational note: this Soto-Breyer production reunites the dissenting duo from last week’s Sossamon v. Texas. Both opinions are heavy on legislative history and purpose, trademarks of Breyer’s opinion. We may see this pairing much more frequently.

In a 6-2 opinion in Sossamon v. Texas, Justice Thomas found that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. Justice Sotomayor, joined by Justice Breyer, dissented. Justice Kagan recused.

Majority Opinion

Thomas found that waivers of sovereign immunity should be “strictly construed.” RLUIPA’s authorization of “appropriate relief against a government,” is not an unequivocal expression of state consent.

“Appropriate relief” is open-ended and ambiguous about the relief it includes. “Appropriate” is inherently context-dependent. And the context here—where the defendant is a sovereign—suggests, if anything, that monetary damages are not “suitable” or “proper.” See Federal Maritime Comm’n v. South Carolina Ports Authority, 535
U. S. 743, 765. Further, where a statute is susceptible of multiple plausible interpretations, including one preserving immunity, this Court will not consider a State to have waived its sovereign immu nity. Sossamon’s and Texas’ conflicting plausible arguments about whether immunity is preserved here demonstrate that “appropriate relief” in RLUIPA is not so free from ambiguity that the Court may conclude that the States, by receiving federal funds, have unequivo cally expressed intent to waive their immunity.

The Court also rejected the argument that because the legislation was passed pursuing to the Spending Clause (and not the 14th amendment, see Boerne v. Flores), traditional contract doctrine of breach and damages do not apply.

Sossamon mistakenly contends that Congress’ enactment of RLUIPA §3 pursuant to the Spending Clause put the States on notice that they would be liable for damages because Spending Clause legislation operates as a contract and damages are always available for abreach of contract. While acknowledging the contract-law analogy,this Court has been clear “not [to] imply . . . that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise,” Barnes, supra, at 188, n. 2, or to rely on that analogy to expand liability beyond what would existunder nonspending statutes, much less to extend monetary liabilityagainst the States. Applying ordinary contract principles here wouldalso make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon’s implied-contract remedy cannot be squared with the rule that a sovereign immunitywaiver must be expressly and unequivocally stated in the relevantstatute’s text.

All these footnotes added in the relatively short majority opinion (14 pages) tell me that Thomas needed to add a lot of stuff at the last minute to keep the 6 member majority happy.

Sotomayor’s Dissenting Opinion

Justice Sotomayor’s dissent finds the phrase “appropriate relief” unambiguous—it refers to monetary damages—and focuses on how the majority’s opinion “undermines the ‘broad protection of religious exercise’” of RLUIPA. There is very little discussion of sovereign immunity, or as Justice Thomas puts it in a footnote, “this Court’s precedents regarding waiver of sovereign immunity, which the dissent gives astonishingly short shrift.”

The Court holds that the term “appropriate relief” is too ambiguous to provide States with clear notice that theywill be liable for monetary damages under the ReligiousLand Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. I disagree. No one disputes that, in accepting federal funds, the States consent to suit for violations of RLUIPA’s substantive provisions; the only question is what relief isavailable to plaintiffs asserting injury from such violations. That monetary damages are “appropriate relief” is,in my view, self-evident. Under general remedies principles, the usual remedy for a violation of a legal right isdamages. Consistent with these principles, our precedents make clear that the phrase “appropriate relief” includes monetary relief. By adopting a contrary reading of the term, the majority severely undermines the “broad protection of religious exercise” Congress intended the statute toprovide. §2000cc–3(g). For these reasons, I respectfully dissent.

Sotomayor makes a strong point, asking “why the phrase “appropriate relief” would provide adequate notice as to equitable remedies [which the majority found were permissible] but not as to monetary ones.” From a perspective of remedies Sotomayor is probably right:

The majority suggests that equitable relief is the sole “appropriate relief” for statutory violations “where the defendant is a sovereign.” Ante, at 6–7. There can be little doubt, however, that the “appropriateness” of relief to be afforded a civil plaintiff is generally determined by the nature of the injury to his legal rights

Part II of the opinion may as well have been written by Justice Breyer, focusing heavily on the purpose behind RLIUIPA.

There is another reason to question the soundness of today’s decision. The Court’s reading of §2000cc–2(a) severely undermines Congress’ unmistakably stated intent in passing the statute: to afford “broad protection of religious exercise, to the maximum extent permitted by the terms of [the statute] and the Constitution.” §2000cc–3(g).I find it improbable that, in light of this express statutory purpose and the history of “long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens,”

Sotomayor equates the majority’s opinion with forcing litigants to litigate with one hand tied behind their back. In many cases, prospective relief is inadequate.

It is difficult to believe that Congress would have devoted such care and effort to establishing significant statutory protections for religious exercise and specifically extended those protections to persons in state institutions, yet withheld from plaintiffs a crucial tool for securing the rights the statute guarantees.
By depriving prisoners of a damages remedy for violations of their statutory rights, the majority ensures that plaintiffs suing state defendants under RLUIPA will be forced to seek enforcement of those rights with one hand tied behind their backs. Most obviously, the majority’s categorical denial of monetary relief means that a plaintiff who prevails on the merits of his claim that a State has substantially burdened his religious exercise will often be denied redress for the injury he has suffered, because in many instances “prospective relief accords . . . no remedy at all.” . . . Injunctive relief from a federal court may address a violation going forward, but this fact will be of cold comfort to the victims of serious, nonrecurring violations for which equitable relief may be inappropriate.

During his testimony before the Appropriations Committee, Justice Kennedy made some bold comments about how the blogosphere and the Internet have revolutionzed access to the Supreme Court, calling it a “quiet revolution” and “sea change.” He noted that a number of blogs post instant analyses of cases within hours after they come out (or on my site, usually within minutes).

Kennedy also noted that the Supreme Court web site gets 59 million hits a month. That is awfully impressive.

There is no official transcript available (let me know if you can find one) so I did my best to transcribe the comments, which begin at 50:19 of this video. (there may be some errors)

We have seen since Justice Breyer and I have been on our Court, a quiet revolution because of IT, information technology. We have a website we run it ourselves. We get 59 million hits a month. There is a study I have seen, I am somewhat skeptical of, we are 12th or 13th of any government agency, 179,000 page hits a day.

I used to read Supreme Court cases over the summer. I would wait for months or years for law review articles. Now there are blogs. There are law professors in specialized areas, information technology, antitrust, that have blogs, that within weeks, days, even hours, they comment on our cases

Our case law is now part of arguments that attorneys make to distirct and circuit judges within hours after we decide cases

This has been very efficient. There has been a sea change how accessible our cases are. The system works. It is a quiet revolution. It makes our courts very efficient and very effective

I noted that in Citizens United v. FEC, Justice Kennedy was the first Justice to use the word “blog” in a Supreme Court opinion. It seems that AMK may be one of the most tech savvy Justices around, Justice Scalia’s iPad notwithstanding.

I previously blogged about a recent suit field in New York City. New York State sets a maximum gun registration fee of $10. However, New York City is exempted from that policy, and the annual registration fee is $340. The plaintiffs contend that this fee violations the Second Amendment. Alternatively, the plaintiffs contend that this regime violates the Equal Protection Clause.

In Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One I explained that the equal protection clause can be used as means to enjoin eminent domain when similarly situated people are treated disparately through Olech’s “class of one.” As I conceded, because these claims would not be subject to rational basis review, absent some kind of Cleburne-esque heightened rational basis review, these claims would likely fail.

But what if a fundamental right–such as the Second Amendment–is applied in this context? What if the Plaintiffs can show that they are being treated disparately from other similarly situated citizens with respect to a fundamental constitutional right?

In this sense, the Equal Protection Clause, working in tandem with the Second Amendment, can serve as the basis for a 1983 suit challenging the constitutionality of NYC’s regulation.

To state an Olech 1983 claim, there are three elements. (Some Circuits require a showing of malice, others do not. I will assume, as I did in my article that malice is not required, until the Supreme Court says otherwise).

First, you have to define the class. This is simple enough. Any New York City resident who is subject to the high registration fee.

Second, you have to establish intentional or differential, or unequal, treatment. Again, this is easy. New York City residents are subject to a $340 fee, while people possessing the same firearms outside of the City only have to pay $10.

Third, you have to apply the relevant tier of scrutiny. If the Second Amendment is a “fundamental” right, then strict scrutiny should apply. McDonald, which referred to the Second Amendment as a fundamental, incorporated right suggests that strict scrutiny is appropriate. However, many Circuit Courts have applied intermediate scrutiny. Either way, rational basis was rejected in Heller. So applying strict scrutiny, or intermediate scrutiny, the Court must assess how important the government’s asserted interest is to permit a deprivation of individual liberty.

This is where The Constitutionality of Social Cost comes in. The City’s argument will go something like this: oh well, New York City is a high crime, urban area. There is more violence in New York City, and we have a stronger interest in ensuring that guns are only given to the most responsible citizens. In other words, they mimic Justice Breyers dissents from Heller and McDonald. Breyer argued, and in my estimation the majority did not dispute, that in high-crime urban areas, Second Amendment rights can be curtailed. In other words, the Second Amendment can mean different things in different places. In light of this “compelling” or “important” interest, the state will say that regulation is “narrowly tailored” or “rationally related” and survives the respective level of scrutiny.

I disagree with the asserted interest is sufficient. As I wrote, the Second Amendment does not have a geography clause; or more precisely, the right to keep and bear arms is not a locational right.

Do constitutional rights mean different things in different places? In two primary contexts—First and Fourth Amendment cases—the Court considers location to determine the content of rights. These locational constitutional rights must be distinguished from the Second Amendment jurisprudence the dissenters propose, and the majority fails to rebut. In both of these contexts, geography is but one factor that must accompany an ex post observation of a cognizable act. In contrast, as Breyer explains, geography—such as a “high crime area,” however that is defined—by itself could be assessed ex ante to deprive law abiding citizens, who have engaged in no activity, of their constitutional rights.

…

This finding implicitly concedes what Justice Scalia left open in Heller, and what Breyer seeks. Urban cities, based on “local needs and values”—presumably those areas with high crime—can fashion different types of constitutional gun control ordinances based solely on this geographic fact, that is, in no way based on any cognizable act of individuals posing threats to others. Does this suggest that a law restricting a constitutional right in an urban high-crime area would be unconstitutional elsewhere? Not necessarily. But combined with the failure to rebut Breyer’s dissent, this dicta gives judge’s a license to grant a “[s]afe harbor” for such location-based laws.

In this sense, the Equal Protection clause can be used to challenge Second Amendment regulations that vary based on geographic location.

The Court’s opinion in Illinois Elections Board v. Socialist Workers Party supports this notion. When a fundamental right is at stake, The Court found that the Illinois Election Code, which required independent candidates and new political parties to obtain more than 25,000 signatures in Chicago, and fewer statewide, is unconstitutional. Rights burdening a fundamental right can’t treat different people in different parts of the state differently.

Equal Protection for the Second Amendment: sounds like another article I have to add to my list.