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Photos and Vines from Texas Supreme Court Investiture

November 12th, 2013

Today I had the joy of attending a double-feature investiture during a special session of the Texas Supreme Court, held at the Texas House of Representatives. Justice Hecht was elevated to serve as Chief Justice, to replace the outgoing Chief Justice Wallace Jefferson. Justice Jeff Brown, from the 14th Court of Appeals right here in Houston, was appointed by Governor Perry to fill Justice Hecht’s seat. Justice Scalia presided over both investitures, and issued the oaths.

Governor Perry attended, and told Justice Scalia, “We welcome you to Texas, sir. You would fit right in.” Later, Scalia noted that if he wasn’t a Virginian, he would be a Texan. Scalia also joked that he deeply respected his children that went into the military and the clergy. Oh, and the lawyers too. Nino’s best joke was to Hecht, who served as Associate Justice for 25 years before being elevated as Chief. Scalia quipped, I’ve been on the Court 27 years, and there’s no chance of me being Chief.

Also in the House (ha!) were almost-Justice Harriet Miers, and Alberto Gonzales. From the 5th Circuit, Judges Higginbotham, Jones, Smith, Benaveides, Haynes, and Owens were present. There were many Judges from the Texas Court of Criminal Appeals, the Texas Courts of Appeals, the District Courts, and other dignitaries. Kudos to Twitter’s favorite Justice, Justice Don Willett for reading ALL of the names.

Here are all of my various Pics and Vines fromt eh event.

And some pics from the State Bar of Texas

I hope Scalia didn’t say, I’m so board. You can see Bryan Garner in the background.

Instant Analysis: Gunn v. Minton

February 20th, 2013

Federal question jurisdiction makes me bizarrely excited. Here is a quick run-down of Gunn v. Minton.

First, I should note that the Court highlighted the dissenting positions of Justices Guzman and Medina, both graduates of the South Texas College of Law, and Justice Don Willettt, a friend of this blog.

Justice Guzman, joined by Justices Medina and Willett, dissented. The dissenting justices would have held that the federal issue was neither substantial nor disputed, and that maintaining the proper balance of responsibility between state and federal courts precluded relegating state legal malpractice claims to federal court.

These judges got it right. Here is the issue as framed by the Chief:

As relevant here, Congress has authorized the federal district courts to exercise original jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. §1331, and, more particularly, over “any civil action arising under any Act of Congress relating to patents,” §1338(a). Adhering to the demands of “[l]inguistic consistency,” we have interpreted the phrase “arising under” in both sections identically, applying our §1331 and §1338(a) precedents interchangeably. See Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 808–809 (1988). For cases falling within the patent-specific arising under jurisdiction of §1338(a), however, Congress has not only provided for federal jurisdiction but also eliminated state jurisdiction, decreeing that “[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents.” §1338(a) (2006 ed., Supp. V).

I still wonder how depriving state courts of federal jurisdiction is constitutional (see lots of posts here).

To determine whether jurisdiction was proper in the Texas courts, therefore, we must determine whether it would have been proper in a federal district court—whether, that is, the case “aris[es] under any Act of Congress relating to patents.”

Roberts lays out the  two ways “a case can “aris[e] under” federal law.” First, American Well Works’ “Creates the cause of action” test. That was Holmes.

Minton’s original patent infringement suit against NASD and NASDAQ, for example, arose under federal law in this manner because it was authorized by 35 U. S. C. §§271, 281.

But the other avenue for arising under in claims that “Find its origin in state” law is quite murky.

But even where a claim finds its origins in state rather than federal law—as Minton’s legal malpractice claim indisputably does—we have identified a “special and small category” of cases in which arising under jurisdiction still lies. Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 699 (2006). In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first

Roberts turns to Grable, a case that was decided while I was taking CivPro.

In an effort to bring some order to this unruly doctrine several Terms ago, we condensed our prior cases into the following inquiry: Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”? Grable, 545 U. S., at 314. That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.

So here we get a clarification of Grable:

Applying Grable’s inquiry here, it is clear that Minton’s legal malpractice claim does not arise under federal patent law. Indeed, for the reasons we discuss, we are comfortable concluding that state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of §1338(a). Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction.

Got that? The “unlikely to have the sort of significance for the federal system” is the newest addition to the “arising under” morass.

The Court also opens up the “significance” analysis to look at the federal system as a whole, rather than the particular issues before the Court.

As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

Curiously, only one citation to Merrell Dow and Smith v. Kansas City Title & Trust (in which Holmes dissented). In contrast, Grable cited Merrell Dow 23 times. I reckon that Stevens opinion is on the wane.

A second illustration of the sort of substantiality we require comes from Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), which Grable described as “[t]he classic example” of a state claim arising under federal law. 545 U. S., at 312. In Smith, the plaintiff argued that the defendant bank could not purchase certain bonds issued by the Federal Government because the Government had acted unconstitutionally in issuing them. 255 U. S., at 198. We held that the case arose under federal law, because the “decision depends upon the determination” of “the constitutional validity of an act of Congress which is directly drawn in question.” Id., at 201. Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government “securities were issued under an unconstitutional law, and hence of no validity.” Ibid.; see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 814, n. 12 (1986).

Roberts also has an interesting discussion of how state courts should consider patent cases–hint, check with what federal courts have done/would do.

Nor will allowing state courts to resolve these cases undermine “the development of a uniform body of [patent] law.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 162 (1989). Congress ensured such uniformity by vesting exclusive jurisdiction over actual patent cases in the federal district courts and exclusive appellate jurisdiction in the Federal Circuit. See 28 U. S. C. §§1338(a), 1295(a)(1). In resolving the nonhypothetical patent questions those cases present, the federal courts are of course not bound by state court case-within-a-case patent rulings. See Tafflin v. Levitt, 493 U. S. 455, 465 (1990). In any event, the state court case-within-a-case inquiry asks what would have happened in the prior federal proceeding if a particular argument had been made. In answering that question, state courts can be expected to hew closely to the pertinent federal precedents. It is those precedents, after all, that would have applied had the argument been made. Cf. ibid. (“State courts adjudicating civil RICO claims will . . . be guided by federal court interpretations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guided by state court interpretations of state law”). As for more novel questions of patent law that may arise for the first time in a state court “case within a case,” they will at some point be decided by a federal court in the context of an actual patent case, with review in the Federal Circuit. If the question arises frequently, it will soon be resolved within the federal system, laying to rest any contrary state court precedent; if it does not arise frequently, it is unlikely to implicate substantial federal interests. The present case is “poles apart from Grable,” in which a state court’s resolution of the federal question “would be controlling in numerous other cases.”

Roberts concludes by saying that the state court’s resolution of the patents will not be binding precedent–they are only used for that one case.

As we recognized a century ago, “[t]he Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy.” New Marshall Engine Co. v. Marshall Engine Co., 223 U. S. 473, 478 (1912). In this case, although the state courts must answer a question of patent law to resolve Minton’s legal malpractice claim, their answer will have no broader effects. It will not stand as binding precedent for any future patent claim; it will not even affect the validity of Minton’s patent. Accordingly, there is no “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” Grable, supra, at 313. Section 1338(a) does not deprive the state courts of subject matter jurisdiction.

Pre-“Originalism”

January 18th, 2013

A cool new article in the Harvard JLPP titled “Pre-‘Originalism’” by some good friends, Lorianne Updike Toller, J. Carl Cecere, and Justice Don Willett. Here is the abstract:

The ongoing debate over Originalism begs the question of historical legitimacy. All sides have tried to claim that their preferred method of analysis has a stronger historical pedigree by attempting to show that their theory has been adopted by the ultimate constitutional arbiter — the United States Supreme Court. Yet scholarship on this topic has largely been selective and episodic, focusing narrowly on a few specific examples from a few famous Supreme Court cases. Furthermore, those who have studied anecdotal evidence have largely taken Justices’ claims at face value, without discovering whether the justices’ claimed and practiced methodology actually aligned. And research is all-too-often overtly biased, ignoring any evidence that might contradict, or at least complicate, the analysis.

This article seeks to overhaul this debate, by analyzing the historical pedigree for various modes of constitutional interpretation using a systematized, quantitative and qualitative analysis of the Supreme Court’s cases of “constitutional first impression” — those occasions on which the Court has approached individual parts of the Constitution for the very first time. In hopes of compiling unbiased, randomized, and controllable data to help answer this question, we performed a quantitative, data-driven review of these 96 cases of constitutional first impression, which span the Court’s nearly 220-year history from 1789-2005.

Our results showed that the historical Court did lay claim to relying on the intention of the Framers in their interpretation of the Constitution, placing them today in what would be the Intentionalist camp. Yet our qualitative and quantitative data undermines the Court’s claimed intentionalism, albiet for different reasons at different times. In the first century, the Court claimed to — but did not actually — rely upon Framing Intent as it is currently understood. Perhaps this was because the Court was using a common law method of interpretation, or because it had adopted a “Whiggish” view of the Constitution’s history.

In the second century, on the other hand, the Court did rely more upon specific primary Framing-era sources to support its supposed Intentionalism. Yet the Court also relied more upon secondary sources that complicate the picture, including many that demonstrate a trend towards Living Constitutionalism.

We therefore believe the conclusion that the Court adopted any form of Originalism before the modern advent of the term, to be wrong. It is not possible to say the Court actually engaged in Originalism until the Warren and Burger Courts. This is ironic, given that it was the Warren and Burger Courts that were most often accused of avoiding Originalist interpretation. But this was the era in which the Court finally started to make good on its commitment to relying on the intent of the Framers by citing to them and their documents with consistency and proportional frequency.

Although our study has focused only on cases of constitutional first impression, because it constituted a randomized, inclusive, and representative sample of the Court’s constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized.

I read an earlier draft of this article. It makes an important contribution to understanding what originalism was before there was “originalism.” In the past, I have described Justice John Marshall Harlan I as a “proto-originalist.”

White House Opposes Petition for SC, NC, AL, TN, GA, FL, TX, LA, Secession

January 14th, 2013

Jon Carson, the Director of the Office of Public Engagement was saddled with this important response to petitions seeking the secession of a number states from the Union.

In a nation of 300 million people — each with their own set of deeply-held beliefs — democracy can be noisy and controversial. And that’s a good thing. Free and open debate is what makes this country work, and many people around the world risk their lives every day for the liberties we often take for granted.

But as much as we value a healthy debate, we don’t let that debate tear us apart.

Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, “in contemplation of universal law and of the Constitution the Union of these States is perpetual.” In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States.

Yeah, citing Lincoln will not play well to people from South Carolina, North Carolina, Alabama, Tennessee, Georgia, Texas, and Louisiana who want to secede.

Hell, he even cited Texas v. White!

And shortly after the Civil War ended, the Supreme Court confirmed that “[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.”

H/T Justice Willett

Don’t Mess with Texan Liberty

October 24th, 2010

All too often federal judges wax lyrical about the state police power, and the ability of the states to proscribe individual liberty to achieve health, safety, morals, and welfare, in only the most general of terms. In the case of Robinson v. Crown Cork & Seal Company, Justice Don Willett of the Supreme Court of Texas, a friend of this blog, wrote a brilliant concurring opinion that explores the police power and liberty from a perspective we seldom see–from that of a state Supreme Court Justice. In this post, I will excerpt some of the best quotes, and expand on the broader themes. I encourage you to read the entire opinion. While there is a citation to Star Trek, the citations to Burke, Hume, Jefferson, and Madison are much cooler.

Every case that reaches this Court concerns real people buffeted by real problems in the real world. This dispute, however, possesses a transcendent quality, touching not only these parties but also building-block constitutional principles that belong to all Texans. In that sense, it affords a whetstone on which to sharpen our thinking on some bedrock notions of government and how the Texas Constitution assigns democratic responsibilities. More to the point, it teaches a vital lesson about diminished liberty stemming from government overreaching: The Legislature’s police power cannot go unpoliced.

Usually when I  see the word transcendent in judicial opinions, it is connected to dimensions of the transcendant type But in this case, it fits quite well. This opinion considers whether a law passed by the state legislature violates the retroactivity prohibition in the Texas Constitution. Retroactive laws are “are constitutionally permissible if they are a ‘valid exercise of the police power by the Legislature to safeguard the public safety and welfare.'” Thus, to resolve this question, Justice Willett considers whether this law was in fact a valid exercise of the police power.

I remember sitting in Con Law class as a 1L, and I asked my prof what the police power actually was? I received an unsatisfying answer, and was told it meant basically anything the state wanted (in contrast to the enumerated powers of the Federal Government). I wasn’t buying it then. After reading this opinion, I’m definitely not buying it.

In this case, the act passed by the legislatures seems to provide a special carveout that blocked certain types of asbestos suits against a specific company, effectively denying Barbara Robinson a remedy (rent seeking 101).

House Bill 4 was enacted against a backdrop of urgency, but with legislative police power, unfettered must never be unfretted. As litigants often discover, in the Legislature a deal is sometimes a raw deal. But unfair does not always equal unconstitutional; even vested rights can be impinged if lawmakers have a good- enough reason.

…

Nobody disputes “the authority of the Legislature to make reasoned adjustments in the legal system.”17 But lawmakers aiming to statutorily prescribe what is constitutionally proscribed must make a convincing case. As the Court carefully explains, the sparse record underlying chapter 149 falls short of what must be shown before someone is made to surrender a constitutional right.

Indeed, constitutional rights are not absolute. But, according to this opinion, the legislature better have a damn good reason (and not just a “rational basis” in the Lee Optical sense) before negating a constitutional liberty.

Following this discussion of Texas law, Justice Willettt goes meta. What is the relationship between the individual and the state?

Today’s case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves.

Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen’s relationship with the State has confounded for centuries longer.

• From 1651, Leviathan: “For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, ’tis hard to passe between the points of both unwounded.”18

Willett draws four principles from the police power.

First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.”

First, the police power, by its very nature, requires infringing the rights of the few to benefit the many. This resolves many collective action problems that would exist in its absence.

Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan21), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency. That is, there must exist a societal peril that makes collective action imperative: “The police power is founded in public necessity, and only public necessity can justify its exercise.”22

21 See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book’s opening and closing passages. Most memorable, of course, is Spock’s famous line from his moment of sacrifice: “Don’t grieve, Admiral. It is logical. The needs of the many outweigh . . .” to which Kirk replies, “the needs of the few.”

Second, the police power can only be exercised when there is a public necessity, and not merely when some urgency arises. A line from the Wrath of Khan in footnote 21 illustrates that principle nicely.

Third, whether the surrender of constitutional guarantees is necessary is a legislative call in terms of desirability but a judicial one in terms of constitutionality. The political branches decide if laws pass; courts decide if laws pass muster. The Capitol is the center of policymaking gravity, but the Constitution exerts the strongest pull, and police power must bow to constitutional commands: “as broad as [police power] may be, and as comprehensive as some legislation has sought to make it, still it is subsidiary and subordinate to the Constitution.”23

Third, the courts have an engaged role in its exercise of the judicial power to ascertain whether the negation of individual liberties is in fact necessary.

Fourth, because the Constitution claims our highest allegiance, a police-power action that burdens a guarantee like the Retroactivity Clause must make a convincing case.24 Finally, while police power naturally operates to abridge private rights, our Constitution, being inclined to freedom, requires that such encroachments be as slight as possible: “Private rights are never to be sacrificed to a greater extent than necessary.”25

Fourth, simply put, if the Legislature is going to infringe on a constitutional liberty, they need a very good reason, and can only do so when absolutely necessary. To quote Team America, Freedom isn’t Free.

Willett next wades into the topic of Judicial Review, and the role of the Courts. Adjudication must not decay into abdication, contra FN4 of Carolene Products.

If judicial review means anything, it is that judicial restraint does not allow everything. Yes, courts must respect democratically enacted decisions; popular sovereignty matters. But the Texas Constitution’s insistence on limited government also matters, and that vision of enumerated powers and personal liberty becomes quaint once courts (perhaps owing to an off-kilter grasp of “judicial activism”) decide the Legislature has limitless power to declare its actions justified by police power. At that constitutional tipping point, adjudication more resembles abdication.

The value of an engaged judiciary is to ensure that bounds on governmental power are preserved, and overreaching is cabined. While the cats are away, the mice will play, I suppose.

But we should steadfastly resist defining desperation down. Exceptions to constitutional guarantees are real but also rare, just like modern citations to Marbury v. Madison: “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”28

The “danger that liberty should be undervalued” necessarily implicates “the adjustment of theboundariesbetweenitandsocialcontrol.”29 There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands. If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable.

To be sure, constitutional analysis is nuanced and not prone to doctrinaire absolutes. It is easy to say the sovereign’s shield must never become a sledgehammer, but it is more difficult — and every bit as important — to discern the moment at which it threatens to become a switchblade, carving quietly yet critically away at cherished rights.

Next, in an ode to the Jeffersonian maxim that eternal vigilance is the price of liberty, Willet expresses a caution about the stated purposes of government actions.

Our Bill of Rights is not mere hortatory fluff; it is a purposeful check on government power. Everyday Texans, and the courts that serve them, must remain vigilant, lest we permit boundless police power, often couched in soaring prose, to abridge our Constitution’s enduring “principles of liberty and free government.”33 As Justice Brandeis warned in his now-celebrated Olmstead dissent: “Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent.”34

But is Willett second-guessing (the dreaded role Courts cannot do) the motivation of legislators? Nope.

FN37. To be sure, Members of the Texas Legislature have sworn to “preserve, protect, and defend the Constitution and laws of the United States and of this State,”36 and they doubtless believe their enactments honor basic constitutional guarantees. I never second-guess the Legislature’s motives and goodwill (and have never needed to); we are blessed with 181 lawmakers who serve Texas with full hearts.37 But where the Constitution is concerned, the judiciary’s role as referee [J.B. Not “umpire”]— confined yet consequential — must leaven big-heartedness with tough-mindedness.

Next, Willet avoids the Judicial Restraint/Judicial Activism quagmire, and adopts  the term “Judicial Engagement.” This is a term I have used before, and most popularly put forth by the Institute for Justice (see also David’s Hammer by Clint Bollick).

But an important point must be made: There is a profound difference between an activist judge and an engaged judge. I am honored to serve with none of the former and eight of the latter. Nothing in this concurrence should be distorted into criticism of either lawmakers who passed chapter 149 or judges who passed upon it. My cautions today about unconstrained police power are entirely forward- looking, speaking to what can happen if judges, while not activist are also not properly active, instead preferring to leave police power unpoliced, thus inviting the other branches to flex ever-broader powers. My concerns are less centered on this case than on future ones.

In summary:

Summing up: Judges are properly deferential to legislative judgments in most matters, but at some epochal point, when police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction. The Legislature’s policymaking power may be vast, but absent a convincing public-welfare showing, its police power cannot be allowed to uproot liberties enshrined in our Constitution.

This is just a taste. Please read the entire opinion.