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

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Why would Breyer and Kagan not decide whether Corporations Can Bring Claims Under RFRA

June 30th, 2014

What an odd concurring opinion from Justice Breyer and Kagan:

We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.

How else could the claim fail on the merits, unless they could bring the claim in the first place?

Breyer Cites The Case of the Speluncean Explorers

June 23rd, 2014

In an otherwise unbearable-to-read decision in Utility Air Regulatory Group v. EPA, Justice Breyer treated us to a citation of the Case of the Speluncean Explorers (a favorite of mine) and a discussion of cessante ratione legis cessat ipse lex.

Legal philosophers like to point out that a statute providing that “‘[w]hoever shall willfully take the life of another shall be punished by death’” need not encompass a man who kills in self-defense; nor must an ordinance imposing fines upon those who occupy a public parking spot for more than two hours penalize a driver who is unable to move because of a parade. See Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616, 619, 624 (1949); see also United States v. Kirby, 7 Wall. 482, 485–487 (1869) (holding that a statute forbidding knowing and willful obstruction of the mail contains an implicit exception permitting a local sheriff to arrest a mail carrier). The maxim cessante ratione legis cessat ipse lex—where a law’s rationale ceases to apply, so does the law itself—is not of recent origin. See, e.g., Zadvydas v. Davis, 533 U. S. 678, 699 (2001) (citing 1 E. Coke, Institutes *70b); Green v. Liter, 8 Cranch 229, 249 (1814) (Story, J.) (“cessante ratione, cessat ipsa lex”).

Now, don’t ask me to explain the rest of the opinion, because I can’t.

RBG and Breyer Dissent (In Part) Without Separate Opinion

May 27th, 2014

The vote in Plumhoff v. Rickard was ostensibly 9-0 to reverse, but Justices Ginsburg and Breyer declined to join certain parts of Justice Alito’s majority opinion. There was no separate writing, and no explanation why those parts weren’t joined. From the syllabus:’

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, JJ., joined, in which GINSBURG, J., joined as to the judgment and Parts I, II, and III– C, and in which BREYER, J., joined except as to Part III–B–2.

We can only guess what they didn’t agree with. Here is the key language from III-B-2 that neither joined:

We now consider respondent’s contention that, even if the use of deadly force was permissible, petitioners acted unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.”

Another reason I am in favor of gun control for the police. They should not be allowed to use high-capacity magazines for this very reason–they are trained to keep firing until they run out of ammo (that’s when the threat is over).

Justice Thomas did this in a case a few years ago, but I can’t recall which case.

Sotomayor Cites Breyer’s “Making Our Democracy Work” Twice

April 22nd, 2014

This citation jumped out in Schuette!

The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation order against the Little Rock school board. Cooper v. Aaron, 358 U. S. 1, 5 (1958). On the very day the Court announced that ruling, the Arkansas Legislature responded by chang- ing the rules. It enacted a law permitting the Governor to close any public school in the State, and stripping local school districts of their decisionmaking authority so long as the Governor determined that local officials could not maintain “‘a general, suitable, and efficient educational system.’ ” Aaron v. Cooper, 261 F. 2d 97, 99 (CA8 1958) (per curiam) (quoting Arkansas statute). The then- Governor immediately closed all of Little Rock’s high schools. Id., at 99–100; see also S. Breyer, Making Our Democracy Work 49–67 (2010) (discussing the events in Little Rock).

Has a Justice ever cited a book authored by another Justice in an opinion? Particularly when the cited author joined the majority, and the citing Justice is in dissent?

Update: You ask, twitter shall give. Adam White with the answer:

Update 2: On page 100 out of 108, she cites Breyer again.

It also claims that “the statistics in California across the 17 campuses in the University of California system show that today the un- derrepresented minority percentage is better on 16 out of those 17 campuses”—all except Berkeley—than before California’s equivalent initiative took effect. Id., at 16. As it turns out, these statistics weren’t “‘even good enough to be wrong.’ ” Reference Manual on Scientific Evidence 4 (2d ed. 2000) (Introduction by Stephen G. Breyer (quoting Wolfgang Pauli)).

Breyer On The Delegation of Power From Elected Officials To Unelected Administrators

April 22nd, 2014

Justice Breyer’s Schuette concurring opinion had a very, very strong administrative law flavor to it. He accurately characterized what Prop 2 actually did. In the past, elected members of university boards would delegate decisions about admission policies to unelected faculties and administrators, without any guidance. With Prop 2, the people took that power away from the faculty and administrators, and put it into the Constitution. In a bizarre way, Breyer’s opinion is effectively a version of the non-delegation doctrine. He likes the fact that now the people can decide for themselves.

This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the move- ment of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, §5, but those boards delegated admissions- related decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents §8.01; Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance §4.4.3; Wayne State Univ. Stat. §§2–34–09, 2–34–12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 25–29 (SOTOMAYOR, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies— including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F. 3d 466, 481–482 (CA6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, un- elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking au- thority away from these unelected actors and placed it in the hands of the voters. 

In fact, Breyer specifically cites his PCAOB dissent for the proposition that the political process theory cannot be applied to administrative law.

For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking au- thority is moved from an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise Fund v. Public Company Ac- counting Oversight Bd., 561 U. S. 477, ___ (2010) (BREYER, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the adminis- trative process frequently moves around—due to amendments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative struc- tural burden on a racial minority. And to apply Hunter and Seattle to the administrative process would, by tend- ing to hinder change, risk discouraging experimentation, interfering with efforts to see when and how race- conscious policies work. 

Leave Admin Alone!

I know I give Justice Breyer a hard time, but he is dedicated and committed to the viewing the Constitution as a Democratic document. And it shows here.

Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected repre- sentatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.

Really his entire opinion is based on admin law.

As I have said, my discussion here is limited to circum- stances in which decisionmaking is moved from an un- elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educa- tional benefits of a diverse student body.

I wonder how he would have viewed the constitutionality of Prop 209, which didn’t have the same administrative wrinkles.

Update: Justice Sotomayor disagrees, strongly with Breyer’s valiant admin-law approach to equal protection.

JUSTICE BREYER concludes that Hunter and Seattle do not apply. Section 26, he reasons, did not move the rele- vant decisionmaking authority from one political level to another; rather, it removed that authority from “unelected actors and placed it in the hands of the voters.” Ante, at 5 (opinion concurring in judgment). He bases this conclu- sion on the premise that Michigan’s elected boards “dele- gated admissions-related decisionmaking authority to unelected university faculty members and administra- tors.” Ibid. But this premise is simply incorrect.