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Justice Thomas, writing for the Court in Cullen v. Pinholster, held that “review under §2254(d)(1) is limited to the record that was beforethe state court that adjudicated the claim on the merits.” The actual split it of this 81 page opinion is somewhat confusing. Here is how the Reporter breaks down the division:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,C. J., and SCALIA and KENNEDY, JJ., joined in full; in which ALITO, J., joined as to all but Part II; in which BREYER, J., joined as to Parts I and II; and in which GINSBURG and KAGAN, JJ., joined as to Part II. ALITO, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA-GAN, JJ., joined as to Part II.

Justice Thomas, joined by Chief Justice Roberts, and Justice Scalia and Kennedy joined the opinion in full. Justice Alito joined all but Part II, whereas Justice Ginsburg and Justice Kagan only joined part II. Justice Breyer joined Parts I and II. So by my count we have six votes for Part I (Thomas, Roberts, Scalia, Kennedy, Alito, and Breyer), seven votes for Part II (Thomas, Roberts, Scalia, Kennedy, Breyer, Ginsburg, and Kagan). Sotomayor dissented as to everything, joined by Ginsbug and Kagan to her Part II. Breyer dissented in part. So there are 5 votes for the judgment to be reversed, 4 votes for it to be affirmed. Phew, I think that’s it.

I’ll update this post as I make my way through the opinion.

Justice Thomas Part I

There are six votes for Part I (Thomas, Roberts, Scalia, Kennedy, Alito, and Breyer). This section merely lays out the facts.

Justice Thomas Part II

There are seven votes for Part II (Thomas, Roberts, Scalia, Kennedy, Breyer, Ginsburg, and Kagan). Alito did not join Part II.

In short, a federal district court sitting in habeas review can only consider the factual record presented to the state court that had originally adjudicated the claim on the merits.

We first consider the scope of the record for a §2254(d)(1) inquiry. The State argues that review islimited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.
….
We now hold that review under §2254(d)(1) is limited to the record that was before the state court that adjudicatedthe claim on the merits. Section 2254(d)(1) refers, in thepast tense, to a state-court adjudication that “resulted in”a decision that was contrary to, or “involved” an unreasonable application of, established law. This backwardlooking language requires an examination of the statecourt decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time⎯i.e., the record before the state court.

In a footnote, Thomas rejects Sotomayor’s dissenting position that it would “it would not be “so different” from some other tasks that courts undertake.”

What makes the consideration of new evidence strange is not how “different” the task wouldbe, but rather the notion that a state court can be deemed to have unreasonably applied federal law to evidence it did not even knowexisted. We cannot comprehend how exactly a state court would haveany control over its application of law to matters beyond its knowledge.Adopting JUSTICE SOTOMAYOR’s approach would not take seriouslyAEDPA’s requirement that federal courts defer to state-court decisionsand would effectively treat the statute as no more than a “ ‘mood’ that the Federal Judiciary must respect,” Terry Williams, 529 U. S., at 386

Justice Thomas also chided the 9th Circuit for misinterpreting several precedents:

The Court of Appeals wrongly interpreted Williams v. Taylor, 529 U. S. 420 (2000) (Michael Williams), as supporting the contrary view. . . . The Court of Appeals’ reliance on Holland v. Jackson, 542 U. S. 649 (2004) (per curiam), was also mistaken.

At the conclusion of Part II, Thomas noted:

Although we might ordinarily remand for a properly limited review, the Court of Appeals also ruled, in the alternative, that Pinholster merited habeas relief even on the state-court record alone. 590
F. 3d, at 669. Remand is therefore inappropriate, and weturn next to a review of the state-court record.

And this is where the Court, and the majority parts company.

Justice Thomas Part III

There are five votes for this part: Thomas, Roberts, Scalia, Kennedy, and Alito.

The Court found the 9th Circuit’s alternate holding erroneous.

The Court of Appeals’ alternative holding was also erroneous. Pinholster has failed to demonstrate that the California Supreme Court unreasonably applied clearly established federal law to his penalty-phase ineffective assistance claim on the state-court record. Section 2254(d)prohibits habeas relief.
…
Pinholster has not shown that the California SupremeCourt’s decision that he could not demonstrate deficient performance by his trial counsel necessarily involved an unreasonable application of federal law.
…
Even if his trial counsel had performed deficiently, Pinholster also has failed to show that the California Supreme Court must have unreasonably concluded that Pinholster was not prejudiced.

Thomas also attackes Sotomayor’s standard of review on habeas, which amounts to little more than “her own sense of ‘prudence’” (another word for empathy).

At bottom, JUSTICE SOTOMAYOR’s view is grounded in little more than her own sense of “prudence,” post, at 26 (internal quotation marks omitted), and what appears to be her belief that the only reasonable mitigation strategyin capital cases is to “help” the jury “understand” the defendant, post, at 35. According to JUSTICE SOTOMAYOR, that Pinholster was an unsympathetic client “compound[ed], rather than excuse[d], counsel’s deficiency” inpursuing further evidence “that could explain why Pinholster was the way he was.” Post, at 30. But it certainly can be reasonable for attorneys to conclude that creatingsympathy for the defendant’s family is a better idea because the defendant himself is simply unsympathetic.

Alito Concurring in Judgment

Alito, in a brief 1-page concurring opinion, concurred in Judgment, but only joined Part I of the majority’s opinion. In fact, he also joined Part I of Sotomayor’s dissent.

Although I concur in the Court’s judgment, I agree withthe conclusion reached in Part I of the dissent, namely,that, when an evidentiary hearing is properly held in federal court, review under 28 U. S. C. §2254(d)(1) must take into account the evidence admitted at that hearing.As the dissent points out, refusing to consider the evidencereceived in the hearing in federal court gives §2254(e)(2) an implausibly narrow scope and will lead either to resultsthat Congress surely did not intend or to the distortion of other provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the law on “cause and prejudice.” See post, at 9–12 (opinion of SOTOMAYOR, J.).
Under AEDPA evidentiary hearings in federal court should be rare. The petitioner generally must have madea diligent effort to produce in state court the new evidence on which he seeks to rely. See §2254(e)(2); Williams v. Taylor, 529 U. S. 420, 433–434 (2000). If that requirementis not satisfied, the petitioner may establish the factualpredicate for a claim in a federal-court hearing only if,among other things, “the facts underlying the claim would be sufficient to establish by clear and convincing evidencethat but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2254(e)(2)(B).

Alito adopts Judge Kozinski’s dissent from en banc opinion, and finds that an evidentiary hearing should not be held in this case.

I would hold that the federalcourt hearing should not have been held because respondent did not diligently present his new evidence to the California courts. And I join all but Part II of the opinion of the Court, as I agree that the decision of the state court represented a reasonable application of clearly established Supreme Court precedent in light of the state-court record.

Breyer concurring in part, dissenting part (not in Judgment)

Breyer’s two-page opinion spells out (thankfully) what he joins, and what he does not join.

I join Parts I and II of the Court’s opinion. I do not joinPart III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.

So even though Breyer would not reverse and remand under the terms the Majority does, he does wish to reverse the case. However, he agrees with the Court’s approach, even if he does not join the judgment.

Sotomayor Dissent Part I

Sotomayor wrote a 41 page dissent. Justice Alito agrees, but did not join, Part I of the dissent.

Under the Court’s novel interpretation of §2254(d)(1), however, federal courts must turn a blind eye to new evidence in deciding whether a petitioner hassatisfied §2254(d)(1)’s threshold obstacle to federal habeasrelief—even when it is clear that the petitioner would be entitled to relief in light of that evidence. In readingthe statute to “compe[l]” this harsh result, ante, at 9, the Court ignores a key textual difference between§§2254(d)(1) and 2254(d)(2) and discards the previous understanding in our precedents that new evidence can, in fact, inform the §2254(d)(1) inquiry. I therefore dissent from the Court’s first holding.

Note that the dissent is not “respectful.”

However, at the end, she “respectfully dissent[s].”

I cannot agree with either aspect of the Court’s ruling. I fear the consequences of the Court’s novel interpretation of §2254(d)(1) for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present thatevidence to the state court that adjudicated their claims. And the Court’s conclusion that the California Supreme Court reasonably denied Pinholster’s ineffectiveassistance-of-counsel claim overlooks counsel’s failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would havediscovered. I respectfully dissent.

The Court first holds that, in determining whether astate-court decision is an unreasonable application of Supreme Court precedent under §2254(d)(1), “review . . . is limited to the record that was before the state court that adjudicated the claim on the merits.” Ante, at 9. New evidence adduced at a federal evidentiary hearing isnow irrelevant to determining whether a petitioner hassatisfied §2254(d)(1). This holding is unnecessary to promote AEDPA’s purposes, and it is inconsistent with theprovision’s text, the structure of the statute, and ourprecedents.
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To understand the significance of the majority’s holding,it is important to view the issue in context. AEDPA’s entire structure—which gives state courts the opportunityto decide factual and legal questions in the first instance—ensures that evidentiary hearings in federal habeas proceedings are very rare.
…
These considerations lead me to agree with the courts ofappeals that have concluded that a federal court should assess the reasonableness of a state court’s application of clearly established federal law under §2254(d)(1) in lightof evidence properly admitted in a federal evidentiary hearing.

Sotomayor Dissent Part II

Justice Ginsburg and Kagan joined this opinion.

Sotomayor explicitly disagrees with the Majority’s Part III in Part II of her dissent (joined by Ginsburg and Kagan).

I also disagree with the Court that, even if the §2254(d)(1) analysis is limited to the state-court record,respondent Scott Pinholster failed to demonstrate that theCalifornia Supreme Court’s decision denying his ineffec tive-assistance-of-counsel claim was an unreasonable application of Strickland v. Washington, 466 U. S. 668 (1984). There is no reason for the majority to decide whether the §2254(d)(1) analysis is limited to the statecourt record because Pinholster satisfied §2254(d)(1) oneither the state- or federal-court record.

Sotomayor Dissent Part III

This part is all Sotomayor, she wrote for herself.

The state-court record on its own was more than adequate to support the Court of Appeals’ conclusion that the California Supreme Court could not reasonably have rejected Pinholster’s Strickland claim. The additional evidence presented in the federal evidentiary hearing only confirms that conclusion.

Back in November after oral arguments, I quipped that “Winn will fail.” Today, we see thatWinn in fact, did not win. #notwinning. Justice Kennedy, writing for a 5 member majority, found that the challengers lacked standing under Flast v. Cohen to challenge the tax credit, since it was not a governmental expenditure. Justice Scalia concurred in judgment, joined by Justice Thomas. Justice Kagan wrote the dissent for Ginsburg, Breyer, and Sotomayor. I think this is Kagan’s first prominent 5-4 dissent.

I will update this post as I make my way through the opinion.

Majority Opinion

From the syllabus, we see that the challengers do not fall within the “narrow” Flast exception.

The STO tax credit does not visit the injury identified in Flast. When the Government spends funds from the General Treasury, dissentingtaxpayers know that they have been made to contribute to an establishment in violation of conscience. In contrast, a tax credit allows dissenting taxpayers to use their own funds in accordance with their own consciences. Here, the STO tax credit does not “extrac[t] and spen[d]” a conscientious dissenter’s funds in service of an establishment, 392 U. S., at 106, or “ ‘force a citizen to contribute’ ” to a sectarian organization, id., at 103. Rather, taxpayers are free to pay theirown tax bills without contributing to an STO, to contribute to a religious or secular STO of their choice, or to contribute to other charitable organizations. Because the STO tax credit is not tantamount to a religious tax, respondents have not alleged an injury for standing purposes. Furthermore, respondents cannot satisfy the requirements of causation and redressability. When the government collects and spends taxpayer money, governmental choices are responsible for the transfer of wealth; the resulting subsidy of religious activity is, under Flast, traceable to the government’s expenditures; and an injunctionagainst those expenditures would address taxpayer-plaintiffs’ objections of conscience. Here, by contrast, contributions result from the decisions of private taxpayers regarding their own funds. Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs. Any injury the objectors may suffer are not fairly traceable to the government. And, while an injunction most likely would reduce contributions to STOs, that remedywould not affect noncontributing taxpayers or their tax payments.Pp. 10–16.

Further, the Court rejected the position that because “Arizonans benefiting from the tax credit in effect are paying their state income tax to STOs,” “all income is government property, even if it has not come into the tax collector’s hands.”

This mirrors a comment that Justice Kennedy made during oral arguments:

JUSTICE KENNEDY: I’ll — I’ll give you credit, Mr. Bender. In your brief you say if you are wrong on that point that you are folding your tent and leaving, there’s –that there is no standing and that there’s no — no violation. But I must say, I have some difficulty that any money that the government doesn’t take from me is still the government’s money.

There is an interesting spin on economics in this opinion, and the role of taxes to stimulate economic productive.

Justice Kennedy, in a somewhat Keynesian position, writes.

When a government expends resources ordeclines to impose a tax, its budget does not necessarilysuffer. On the contrary, the purpose of many governmental expenditures and tax benefits is “to spur economicactivity, which in turn increases government revenues.” . . . Because it encourages scholarships for attendance at private schools, the STO tax credit may not cause the State to incur any financial loss

Justice Kagan rejects this position in a footnote.

The majority observes that special tax benefits may in fact “increas[e] government revenues” by “spur[ring] economic activity.” Ante, at 8 (internal quotation marks omitted). That may be so in the longrun (although the only non-speculative effect is to immediately diminish funds in the public treasury). But as the majority acknowledges, ibid., this possibility holds just as true for appropriations; that is whywe (optimistically) refer to some government outlays as “investments.”The insight therefore cannot help the majority distinguish between taxexpenditures and appropriations.

Justice Scalia’s Concurring Opinion

Scalia one-page concurring opinion, joined by Justice Thomas makes a simple point—Flast is an outlier, and he would get rid of it:

Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established. I would repudiate that misguided decision and enforce the Constitution.

Justice Kagan’s Dissenting Opinion

Justice Kagan, in what I believe is her first significant 5-4 dissent, wrote a substantial 23 page opinion (the majority’s opinion was less than 20 pages). The thrust of her opinion is that accsess to federal courts is further constrained (continuing the Iqbal trope), and that now violations of the establishment clause will go unaddressed.

She opens in very powerful language, how the Court departs from four decades of Flast, whereby plaintiffs, with or without meritorious claims, had their day in Court.

For almost half a century, litigants like the Plaintiffs have obtained judicial review of claims that the government has used its taxing and spending power in violationof the Establishment Clause. Beginning in Flast v. Cohen, 392 U. S. 83 (1968), and continuing in case after case for over four decades, this Court and others have exercised jurisdiction to decide taxpayer-initiated challenges not materially different from this one. Not every suit hassucceeded on the merits, or should have. But every taxpayer-plaintiff has had her day in court to contest thegovernment’s financing of religious activity.
Today, the Court breaks from this precedent by refusing to hear taxpayers’ claims that the government has unconstitutionally subsidized religion through its tax system.These litigants lack standing, the majority holds, becausethe funding of religion they challenge comes from a tax credit, rather than an appropriation. A tax credit, the Court asserts, does not injure objecting taxpayers, becauseit “does not extract and spend [their] funds in service of anestablishment.” Ante, at 15 (internal quotation marks and alterations omitted).
. . .
In not a single non-trivial respect could the Flast Court recognize its handiwork in the majority’s depiction.

Kagan rejects the Majority’s distinction between tax appropriations and tax credits/expenditures, and laments that today’s opinion will enable legislatures to “end-run Flast’s guarantee of access to the Judiciary.”

This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations. Taxpayers who oppose stateaid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity.And so either way, taxpayers should be able to challenge the subsidy.
Still worse, the Court’s arbitrary distinction threatens toeliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely becauseappropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other. Today’s opinion thus enables the government toend-run Flast’s guarantee of access to the Judiciary. From now on, the government need follow just one simple rule—subsidize through the tax system—to preclude taxpayer challenges to state funding of religion.

Curiously, Justice Kagan uses the example of bank bailouts, an example that surely likely appeals to supporters of the Tax Credit, to illustrate this “distinction . . . in search of a difference.”

To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides itshould pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, thatmany millions of taxpayers oppose this bailout on theground (whether right or wrong is immaterial) that it usestheir hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members ofCongress make the following proposal: Rather than givethe money to banks via appropriations, the Governmentwill allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; in deed, we would think the less of our countrymen if theyfailed to see through this cynical proposal

In very ominous language, Kagan signals the “effective demise of taxpayer standing.”

And that result—the effective demise of taxpayer standing—will diminish the Establishment Clause’s force andmeaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore willprevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality. Because I believe these challenges warrant consideration on the merits, I respectfully dissent from the Court’s decision.

Kagan’s concluding paragraph sounds a similarly alarmist tone.

Today’s decision devastates taxpayer standing in Establishment Clause cases. The government, after all, oftenuses tax expenditures to subsidize favored persons and activities. Still more, the government almost always has this option. Appropriations and tax subsidies are readily interchangeable; what is a cash grant today can be a taxbreak tomorrow. The Court’s opinion thus offers a roadmap—more truly, just a one-step instruction—to anygovernment that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way.No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting anestablishment of religion”—ten simple words that have stood for over 200 years as a foundation stone of Americanreligious liberty. Ten words that this Court has longunderstood, as James Madison did, to limit (though by no means eliminate) the government’s power to finance religious activity. The Court’s ruling today will not shield all state subsidies for religion from review; as the Court notes, some persons alleging Establishment Clause violations have suffered individualized injuries, and therefore have standing, independent of their taxpayer status. See ante, at 1–2, 17–18. But Flast arose because “the taxingand spending power [may] be used to favor one religionover another or to support religion in general,” 392 U. S., at 103, without causing particularized harm to discrete persons. It arose because state sponsorship of religionsometimes harms individuals only (but this “only” is no small matter) in their capacity as contributing members of our national community. In those cases, the Flast Court thought, our Constitution’s guarantee of religious neutrality still should be enforced

Abbie (on the left) and Olivia (on the right) Foster, creators of TeenJury.com. (Photograph courtesy of Masslive.com)

Olivia Foster, is a 14-year-old Freshman at Williston Northampton School in Easthampton, Massachusetts, and is the creator of TeenJury.com. TeenJury.com is a web site managed by teenagers dedicated to teaching other teens about the Supreme Court and our Constitution.The site provides an anatomy of a Supreme Case, biographies of the Supreme Court Justices, discussions of upcoming cases, recaps of recent cases, and news stories.

Last fall, Olivia asked Justice Breyer to autograph a copy of his book, Making Our Democracy work. Justice Breyer  invited her to attend oral arguments, and wrote in her book, “To Olivia, hope to see you in November.” In November, Olivia attended arguments at the Supreme Court for Schwarzenneger v. EMA and Sossamon v. Texas as personal guests of Justice Breyer. This visit to the Court inspired Olivia to create TeenJury.com.

In this podcast, I chat with Olivia about her site, how she created it, her experiences at the Supreme Court, and what she thinks more broadly about the state of civic education in America. Olivia has a bright future ahead of her, and no surprise, wants to attend law school. For more background, check out this profile on MassLive.com.
[podcast]http://harlaninstitute.org/files/2011/03/teenjury.mp3[/podcast]
Cross-posted at the Harlan Institute Blog.

Transcript is available here. I will update this page as I make my way through the transcript

The crux of this case boils down to the power of Arizona to enact certain laws using the “through licensing” provision in the federal law. Justice Scalia recognized this at the outset, and remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration

JUSTICE SCALIA: Well, I think what Arizona would answer to that is: Well, that’s the only option the Federal Government left us.
MR. PHILLIPS: Well, I’m quite sure that that’s what Arizona will say.
JUSTICE SCALIA: They excluded everything else. We might have used reticulated penalties or, you know, enforced the Federal law ourselves, but they forbade that. But they did allow us to enforce the law, immigration laws, through licensing, right? So it all essentially comes down to — to the licensing issue, doesn’t it?

Justice Kennedy remarked that defining “licensing” is not so simple, and cannot be resolved by simple recourse to a Dictionary (Scalia sheds a tear)

JUSTICE KENNEDY: When I picked up this -this brief and looked at this case, I thought: Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something. But it really isn’t. Your brief indicates you start with dictionaries, fair enough. You indicate what Federal licensing laws are. But I see no limitation on what the State can decide is a license in any jurisprudential principle that you cited.

Carter Phillips for Petitioner argued that Congress did not intend the “licensing” provision to enact the states to enact “entire alternative shadow enforcement mechanism, non-administrative decision-making process.” Justice Scalia tends to agree, but notes that nobody would have thought that the Federal Government would fail to enforce their own immigration laws. As a result, Arizona was left with no other alternatives.

JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.

Justice Alito asked a series of questions to get at the meaning of “licensing.”

JUSTICE ALITO: “Licensing” is not an unknown term. States and municipalities issue all sorts of licenses. For example, I think here in the District of Columbia every business has to have a general business license, isn’t that right?
MR. PHILLIPS: That is true, Justice Alito.
JUSTICE ALITO: Now, if the District of Columbia were, after having enacted this requirement some years ago, were to pass a new ordinance saying and “if you knowingly hire an illegal alien, your general business license can be forfeited,” would that not -would that cease to be a licensing law?

Phillips answered no, contending that the additional requirement, tying it to federal law, takes it out of licensing. Justice Kennedy is puzzled by this reply.

JUSTICE KENNEDY: Why is it — this is the same question you are answering. Why is it suddenly not a license because the — because the State imposes an additional condition, where it was a license before?

Justice Breyer looks to the Administrative Procedures Act to define “license”

JUSTICE BREYER: Actually, there is. I mean, I — it seemed to me when I read this, it sounded a little familiar, and I think whoever wrote it in Arizona copied it out of the Administrative Procedure Act. I mean, you read the definition of “license” in the Administrative Procedure Act and this is awfully close.

Unsurprisingly, Justice Scalia interjected, and noted that contrary to the assertions of the SEIU brief, Congress labeled it a general licensing scheme, and not focusing on Agricultural Workers Protection Act.

JUSTICE SCALIA: It could have named that, that particular licensing scheme, if that’s what it

meant. But it didn’t name it. It said licensing generally.
What did it intend to add to that? Barbers’ licenses, beauticians’ licenses? How would any of this have anything to do with the immigration laws?

Scalia seemed convinced that this is in fact a licensing law.

JUSTICE SCALIA: I think it’s very common to talk about authority to do business within a State as -as a license. You say “licensed to do business in” so many States. It’s a common expression.
Now, I have — maybe you will persuade me
otherwise, but I have no doubt that insofar as this law limits the authority to do business within the State, it is a — it is a licensing law.b

Curiously Justice Sotomayor, who famously used the term “undocumented immigrant,” rather than illegal alien in Mohawk Industries v. Carpenter, used the term “illegal alien” during arguments today, and quickly corrected herself and said “undocumented aliens.”

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

Sotomayor was not really concerned with the meaning of “license,” but instead focused on the preemption issue.

JUSTICE SOTOMAYOR: So I’m — you know, how they define “license” or not is irrelevant to me. Walk me through whether — what expressly preempts that adjudication right — or what implicitly preempts that adjudication right.
Because that is, for me, what the center of this question is.

General Katyal was asked a series of questions about licensing, and Justice Sotomayor moved onto what seems to be the important issue to her—preemption

JUSTICE SOTOMAYOR: At the time the statute was passed there were many, many State laws that adjudicated revocation of licenses. Perhaps not many have addressed the issue of hiring undocumented aliens, but many State laws existed that independently adjudicated revocations. What in the legislative history or in the words of the statute show that Congress intended in any way to limit those adjudications?

Ms. O’Grady, Solicitor General of Arizona, was hit right out of the gate with a sharp question from Justice Ginsbug.

JUSTICE GINSBURG: Have you answered the anomaly that Arizona cannot impose a fine even in a modest amount, but it can revoke someone’s license to do business?

Justice Kennedy followed up, and asked “But underlying Justice Ginsburg’s question is why would Congress want to do that?”

Justice Scalia, continuing his refrain from before, argues that Congress never expected the States to have to revoke licenses, because they would have enforced their own immigration laws.

JUSTICE SCALIA: Perhaps Congress never expected that the States would have to resort to such massive measures, and they probably wouldn’t have if -if the law had been uniformly enforced and vigorously enforced; right?
You — you didn’t — didn’t have any notion of doing this sort of thing in 1986, did you?
MS. O’GRADY: Your Honor, certainly we waited until 2007.
JUSTICE SCALIA: So maybe Congress wasn’t worried about it because it seemed very unlikely that anything like that would occur.

Justice Breyer cuts to one of the issue of racial profiling, and questions whether this law encourages employers to discriminate based on race.

JUSTICE
BREYER: The main — the main anomaly it seemed to me to be this, that in the Federal Act, as — that was the first point that the Chamber made, that it’s a fairly careful balance. There are a group of people in Arizona, they may look as if they come from Mexico or speak with an Hispanic accent, and you are not certain whether they in fact are illegals or that they are legal. Now, think of that category.
Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It’s absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.
So Arizona comes along and says: I’ll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That’s just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent — how do you reconcile that with Arizona’s law?

If you are a businessman, every incentive under that law is to call close questions against hiring
this person. Under the Federal law every incentive is to look at it carefully.

Justice Ginsburg moved onto the issue of Arizona forcing employers to use E-Verify, a federal resource, where the Federal Government does not.

JUSTICE GINSBURG: Can you explain that, E-Verify, because this is a Federal resource, and the Federal Government has said we want this to be voluntary. How can Arizona take a Federal resource, which the Federal government says is voluntary except in certain circumstances, and turn it into something that is mandatory?
…
JUSTICE SCALIA: Do — do you make it mandatory?
MS. O’GRADY: Well, our statute says you shall use E-Verify. We don’t impose a penalty against employers who fail to use it. The consequences are the same as they are under Federal law.
JUSTICE SCALIA: You just — you just don’t get the safe harbor. Isn’t that the only consequence?

Justice Kennedy seemed to think the program was mandatory.

JUSTICE KENNEDY: But you are taking the mechanism that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that’s almost a classic example of a State doing something that is inconsistent with a Federal requirement.

During Phillip’s rebuttal time, Justice Scalia took another dig at federal immigration policy, noting that there are not enough prosecutions for violations.

JUSTICE SCALIA: Convicted by — by a Federal Government that hasn’t gone after many convictions.
MR. PHILLIPS: Justice Scalia -JUSTICE
SCALIA: That’s the whole problem.

The transcripts for Snyder v. Phelps are available here. I will post my comments as I read through the transcript.

Argument for Petitioner Snyder

Right out of the bat, Justice Scalia jumped over the attorney for Snyder, asking how the video “epic” posted on the Internet, and the protest at the funeral, were related. These were submitted to the jury as one cause of action, but Scalia sees them as separate events. This could suggest Scalia is more likely to find the funeral protest actionable, but limit it to those facts.

JUSTICE SCALIA: That’s fine, but it — it does not intrude upon the funeral. I mean, no. You either have two separate causes of action — one is the intrusion upon the funeral and the other is the harm caused by viewing this posting on the Internet — but I don’t see how they both relate to intrusion upon the funeral.

…

JUSTICE SCALIA: Suppose there hadn’t been a funeral protest, just the epic. Would that have supported the cause of action you assert here?
…

JUSTICE SCALIA: It’s his choice to watch them, but if he chooses to watch them he has a cause of action because it causes him distress.

JUSTICE GINSBURG: Well, why does he have a claim? As I understand it, after this case arose Maryland passed a statute putting time, place, and manner restrictions. I read that statute and it seems to me that there was nothing unlawful, nothing out of compliance with that statute, that was done here. It was at considerable distance. There was no importuning anyone going to the funeral. It stopped before the funeral, the service, began. Am I right that under the current statute this conduct was not unlawful?

JUSTICE GINSBURG: So it sounds like to you it’s the whole society, the whole rotten society in their view.

JUSTICE ALITO: Well, yes, but the signs say “you” and the argument is made “you” doesn’t mean Matthew Snyder; it means a larger group. And then you have the epic, which is directed directly at Matthew Snyder. Doesn’t that show — shed light on what “you” meant on those signs?

Justice Breyer: Now, those are the two questions that I am very bothered about. I don’t know what the rules ought to be there. That is, do you think that a person can put anything on the Internet? Do you think they can put anything on television even if it attacks, say, the most private things of a private individual? Does Maryland’s — does Maryland’s law actually prohibit that? Do we know it does, and what should the rules be there? Have I said enough to get you talking?

(Laughter.)

JUSTICE SOTOMAYOR: All right. And under what theory of the First Amendment would we do that? What case would stand for, our case, stand for the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

MR. SUMMERS: Gertz v. Welch treated the public versus private figure status different, albeit

-JUSTICE GINSBURG: That was defamation, wasn’t it?

JUSTICE SOTOMAYOR: That was defamation. That’s false — truth or falsity.

JUSTICE KAGAN: Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this. It says: “Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views or perhaps on the basis of their dislike of a particular expression.”

Argument for Respondent Phelps

Justice Kagan: Suppose your group or another group or — picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or — or other offensive and outrageous things, and just follows this person around, day-to-day.

Does that person not have a claim for intentional infliction of emotional distress?

…

MS. PHELPS: My answer, Justice Kagan, is: No, I don’t believe that that person should have a cause of action or would under your cases have a cause of action. You couldn’t give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case.

JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn’t be protected by the First Amendment.

MS. PHELPS: We agree that fighting words are less protected under the First Amendment.

JUSTICE SCALIA: Unprotected.

MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social –

JUSTICE SCALIA: Is that so? Do we know that?

MS. PHELPS: I beg your pardon?

JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.

This is a case about exploiting a private family’s grief and the question is: Why should the First Amendment tolerate exploiting this Marine’s family when you have so many other forums for getting -getting across your message, the very same day you did?

JUSTICE KENNEDY: That simply points out that all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young. Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact — the Justice Alito hypothetical in — in — in the grandmother case.

So I — I think — I think your — your public concern issue may — may not be a limiting factor in cases where there is an outrageous conduct and where there should be a tort.

JUSTICE SCALIA: You think that’s solid, absolutely, what’s a fighting word, whereas what is an outrageous statement is very much different from what’s a fighting word? I don’t see the difference.

Besides which, isn’t it the case that in order to recover for the tort of intentional infliction of emotional injury, you have to substantiate the injury with some physical manifestation, which the plaintiff here had?

And my goodness, for fighting words, you don’t even need that. You can just say, these words angered me to the degree that I would have been inclined to fight. At least for this tort, you have to have physical manifestations.

Why isn’t that a very objective standard?

JUSTICE GINSBURG: The Court has made that a very narrow category, hasn’t it? I mean, we have not allowed the fighting words — you say that to me and I’m immediately going to punch you in the nose, because it is an instinctive reaction. I think the Court has rejected spreading fighting words beyond that.

CHIEF JUSTICE ROBERTS: My question is, if he simply buries his son, is he a public figure open to this protest, or — or not?

MS. PHELPS: I don’t know in the context of a war, if I can give a definitive answer to that. It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated. For two years this church