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Saturday, June 30, 2007

ABA Must Report to the Department of Education re Application of its "Diversity" Standard:

Inside Higher Ed has the details. This is a significant victory for those of us who have noted the ABA's abuse of its accreditation power to impose arbitrary and often counterproductive rules on law schools. You can find previous discussions of the controversy here, here, here, and here. Thanks to Instapundit for the pointer.

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Supreme Court Wrap-Ups:

Like the Federalist Society, the American Constitution Society held an end-of-term review that is available here. SCOTUSBlog rounds up some end-of-term analyses here, and has a statistical summary of the term here. I also can't help noting my appearance on the PBS Newshour with Goodwin Liu.

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Saturday song lyrics

I've never blogged song lyrics before, but these, sent to me by Jeffrey Grimmer, reminded me of Richard Epstein:

The song is called "Effect & Cause" and it's from the White Stripes' new album Icky Thump:

Well, in every complicated situation, You're the human relation, Makin' sense of it all, Take a whole lot a concentration

Well, you can't take the effect, And make it the cause, I didn't rob a bank, Because you made up a law, When you people robbin' Peter, Don't you blame Paul, Can't take the effect, And make it the cause

I ain't the reason that you gave me no reason to return your call, You built a house of cards and got shocked when you saw them fall, Well are you sayin' I'm innocent?, In fact the reverse, But if you're headin' to the grave, You don't blame the hearse, You're like a little girl yellin' at her brother, 'Cause you lost his ball

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Friday, June 29, 2007

Federalist Society Panel on the Supreme Court Term:

Yesterday, the Federalist Society held a webcast panel on the Supreme Court term, featuring co-conspirator Orin Kerr, my GMU law faculty colleagues Nelson Lund and Neomi Rao, prominent DC lawyers David Rivkin and Gene Schaerr, and yours truly. Law nerds everywhere will be happy to know that the webcast is now available for your viewing pleasure here. Among other things, I discussed Wilkie v. Robbins and the tension between the "judicial restraint" and textualist/originalist strands in conservative jurisprudence. Near the end of the panel, Orin and I debated the question of whether courts should give statutes enacted by Congress a "presumption of constitutionality." As longtime readers can probably guess, my answer was an emphatic "no," and Orin's a "yes."

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Supreme Court Agrees to Take Guantanamo Bay Cases: Wow — the Supreme Court has granted cert on the D.C. Circuit's Guantanamo Bay cases, Boumediene and Al Odah. What's remarkable about this isn't that the Supreme Court agreed to hear them, but how: the Court denied cert at first back in April, with several Justices writing opinions in the cert denial, and then granted a petition for rehearing. This is extremely unusual, and it is probably a pretty good sign that a reversal is likely. My take on some the legal issues can be found in my recent Senate testimony, available here. This is what I said about the D.C. Circuit's decision that will be reviewed:
[T]he reasoning in that decision is in obvious tension with the Supreme Court's language in Rasul. In Boumediene, the D.C. Circuit concluded that Guantanamo Bay is part of Cuba, not the United States, and that application of the habeas statute to persons detained at the base would not be consistent with the historical reach of the writ of habeas corpus. Judge Randolph rejected the relevance of Rasul in a short footnote. See id. at 992 n.10. Although the Supreme Court denied certiorari in Boumediene for procedural reasons, it seems highly likely that the Court will agree to resolve this issue in a future case. Given that Judge Randolph's approach in Boumediene is in obvious tension with the language found in the majority and concurring opinions in Rasul, it seems likely that a majority of the Supreme Court will view the case differently than did the D.C. Circuit in Boumediene.
  Here's my question: What are the chances that this grant will push the Bush Administration to shut down Gitmo?
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Thursday, June 28, 2007

A Factual Correction

from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1:

"There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' Ante, at 40. This sentence reminds me of Anatole France’s observation: '[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.' The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Stevens, J., dissenting).

"Martha Lum ... desired to attend the Rosedale Consolidated High School .... [A]n order had been issued by the Board of Trustees, ... excluding her from attending the school solely on the ground that she was of Chinese descent and not a member of the white or Caucasian race, ... made in pursuance to instructions from the State Superintendent of Education of Mississippi .... The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race.... The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.... The decision is within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment." Gong Lum v. Rice, 275 U.S. 78 (1927).

Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.)

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School Case Blogging: There's lots of excellent blogging out there today on the Supreme Court's decisions on the use of race in public schools. I was particularly interested in posts by Eric Muller, Paul Horwitz, and Jack Balkin. Are there other posts you think are particularly good? Be sure to link to them in the comment thread.
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SCOTUSblog on Justice Kennedy's Term:

Jason Harrow (SCOTUSblog) tells us how unusual Justice Kennedy's 97% batting average is. (Kennedy was in the minority in only 2 of the 71 cases he participated in this Term.)

Even Justice O’Connor, whom some used to refer to as the “most powerful woman in the world” due to her position in the center of the Court for many years, never had a Term like this. Her most successful Term was OT03, when she was in the minority five times and wrote two dissents; still, in that Term, 4 of her 5 dissenting votes were cast in 5-4 cases (there were 19 5-4’s in OT03).....

One must look way back in the Court's history to find any single Term where one Justice had comparable success. Justice Kennedy's two dissenting votes tied Justice Brennan’s output in October Term 1968; with a larger caseload back then, though, Justice Brennan’s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White’s October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).

The bottom line is that, by most measures, Justice Kennedy’s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.

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Supreme Court Creates New Exception to Habeas Limitations for Ford Claims: Today's death penalty decision in Panetti v. Quarterman created a new exception to AEDPA's ban on federal court jurisdiction over "second or successive" habeas petitions. I think Justice Kennedy is exactly right that Congress should have written such an exception; as a matter of policy, I think the Court's new rule makes a lot of sense. But Congress didn't actually write such an exception, and I thinik the Court's attempt to create the new exception by judicial construction is pretty unpersuasive.

  First, a bit of background. The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane. This means that lawyers for the subject may need to bring claims about the person's sanity soon before the execution is planned; the subject may have turned insane just weeks or months before the execution, long after the subject's habeas claims have been adjudicated. This creates a bit of a puzzle. On one hand, Congress is very interested in giving inmates just one shot at federal habeas relief. On the other hand, claims of insanity can arise at any time, and state courts may be uninterested in looking closely at those claims. The seemingly obvious solution is to create an exception to the usual rule (that inmates get only one shot at federal habeas relief) just to cover these sorts of claims.

  The problem is that Congress didn't create such an exception. Here's what Congress said in 28 U.S.C. 2244 about federal court review of claims in habeas petitions brought the second time around:
(1) A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
The only exception to the rule that claims in second or successive petitions must be dismissed is really narrow; it pretty much just covers new retroactive rules and actual innocence claims. There is no exception for insanity claims (which are known in the biz as Ford claims, after Ford v. Wainright).

  That brings us to the Panetti case handed down today. Panetti filed a claim for federal habeas relief that was litigated in the federal courts from 2001 to 2003. Although Panetti had shown mental illness throughout his case, and his competency was a major issue at trial, he did not raise a Ford claim in his first petition. In 2004, Panetti then filed a second federal habeas petition, this time raising the Ford claim. The question is, did the ban on claims in "second or successive" apply? The state thought it did: It argued that the law was actually really clear here, and that this was a second petition that didn't fall within any exception.

  The Supreme Court disagreed 5-4. Writing for the majority, Justice Kennedy recognized that the state's argument "has some force." But he concluded that it was flawed because of "[t]he results it would produce" when paired with an earlier decision, Stewart v. Martinez-Villareal. In Stewart, the Court had held that if an inmate brings a Ford claim in his first petition that is dismissed because it is not ripe, the inmate can bring the claim later when it becomes ripe; according to the Stewart case, refiling the dismissed claim is really just a continuation of the earlier claim dismissed on ripeness grounds.

  In today's decision, the Court looked at the statute and the Stewart decision and concluded it would be really weird if a petitioner could bring the claim again if he had brought it prematurely before (the holding of Stewart) but not if he hadn't brought it at all. That couldn't be right, Justice Kennedy reasoned: "This counterintuitive approach would add to the burden imposed on the courts, applicants, and the States, with no clear advantage to any."

  But how to get around the pretty clear statutory language prohibiting such petitions? The majority starts by saying that the phrase "second or successive" is "not self-defining." According to the Court, the phrase takes "full meaning" from the Court's caselaw. Among that caselaw is Martinez, which, like other habeas cases, discussed the public policy implications of its holding. Therefore the court can be influenced by the public policy implications of the rule at issue in this case. And when you look at those implications in light of the Stewart precedent, the policy arguments all go one way. When paired with Stewart, Congress's rule would require inmates to file unripe claims just to make sure they aren't stuck with the ban on second or successive petitions. There's really no good argument to be made for that rule; it would require arguments "to be raised as a mere formality, to the benefit of no party." Congress could not have intended such a result.

  Thus the Court announces a new rule: "The statutory bar on 'second or successive' applications does not apply to a Ford claim brought in an application filed when the claim is first ripe." As the court writes elsewhere, "We conclude . . . that Congress did not intend the provisions of AEDPA addressing 'second or successive' petitions to govern in the unusual posture presented here: a 2254 application raising a Ford-based incompetency claim failed as soon as that claim is ripe."

  The problem, as I see it, is that looking at the public policy implications of ambiguous statutory text is pretty different from using policy arguments to ignore text that is really quite plain. If there was a constitutional argument to be made, the Court should have made it. But Congress didn't write the exception it should have written, and absent a constitutional claim it wasn't the Court's job to write it for them.

  UPDATE: On a closer reading of Stewart, I do think the issue here is closer than I thought at first. Stewart is a very brief Rehnquist opinion that has pretty opaque reasoning, but that isn't closely focused on the text. I think that does provide some authority for taking a "common law" approach to the text here (that is, not paying much attention to it), making this decision less objectionable than I had first believed.
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Picker on Leegin: Over at the University of Chicago Faculty Blog, Randy Picker weighs in on this morning's antitrust decision.
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Number of Cases Without An "Opinion of the Court": Here's the statistic I want to know about the Supreme Court Term: How many decisions were there that had either no majority opinion or only a partial majority opinion? My vague impression is that there were unusually few of those cases this Term. Does anyone know if that impression is right? (I actually started to tally the cases, but gave up after about 15 decisions figuring that someone else must have looked at this.)

  UPDATE: In the comment thread, Jason Harrow of SCOTUSblog weighs in with the answer:
We at SCOTUSblog have looked at this number. This Term, we counted four pluralities: TSSAA, FEC v. Wisc. Right to Life, Hein, and Parents v. Seattle Schools (details here). That number is not necessarily lower than previous Terms. According to our previous stats, there were 3 plurality opinions in OT05, 1 in OT04, 3 in OT03, and 5 in OT02. Hope that's helpful.
It is, thanks!
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Justice Kennedy in Majority in All 24 5-4 Cases This Term:

Is this the first time any Justice has had such a tally? SCOTUSblog's SuperStatPack also reports that he was in the dissent in only 2 of the 71 cases in which he participated — is that, too, a record, at least in recent years?

Note that the 24 5-4 cases came out with Kennedy joining the four conservatives 13 times, the four liberals 6 times, and no easily identifiable bloc 5 times. Thanks again to Jim Ho of Gibson, Dunn & Crutcher for first raising this point to me, when Kennedy was merely 16 for 16.

Related Posts (on one page):

  1. SCOTUSblog on Justice Kennedy's Term:
  2. Justice Kennedy in Majority in All 24 5-4 Cases This Term:
  3. Still Batting 1.000:
  4. Batting 1.000:
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Shadowboxing and the Infectious Spread of Ideological Battles:

In addition to the big school cases that were decided today, the Supreme Court also decided an antitrust case, Leegin v. PSKS. In Leegin, the Court overruled a 1911 case (Dr. Miles Medical Co. v. John D. Park & Sons Co., for those of you scoring at home) to find that vertical price restraints should be judged under the rule of reason rather than be treated as per se unlawful (as Dr. Miles had held). You can be forgiven if your eyes are already glazing over.

What's striking about this case is the lineup -- 5-4, with the conservative 5 (Kennedy writing) against the liberal 4. Obviously, I am oversimplifying in using the terms "conservative" and "liberal," because the camps aren't that neat. But that's precisely what's so remarkable about this case -- they fell into that familiar 5-4 lineup on an antitrust case with little ideological baggage. Maybe we shouldn't have been surprised when politically charged cases like today's school cases just happened to have 5 conservatives against 4 liberals. But this is antitrust, not some hot-button issue.

Indeed, recent antitrust cases have not followed ideological lines. Some antitrust cases have been unanimous, like Weyerhaeuser v. Ross-Simmons from this Term, NYNEX v. Discon from 1998, Verizon v. Trinko from 2004 (Stevens concurred separately in that one), and State Oil v. Khan (which overruled a prior precedent) from 1997. Others have been split, but have not rigidly followed ideological lines. Notably, California Dental v. FCC from 1999 was 5-4, but Souter wrote with most of the conservatives and Kennedy dissented with most of the liberals. Meanwhile, Bell Atlantic v. Twombly from this term was 7-2, with Souter writing and Stevens and Ginsburg dissenting. And the predictions for Leegin this Term were not for a 5-4 split of conservatives and liberals. So what gives?

I fear that this reflects shadowboxing and the spread of ideological battles from hot-button cases to other ones. What the dissent in Leegin really says is that there is no good reason here to reject stare decisis, and emphasizes that the arguments against Dr. Miles have been aired for 50 years but Congress has not seen fit to reject it. Translation: respect stare decisis, and look to Congress; please don't go too far now that you have the majority, and respect the decisions of Congress (which happens to have had a recent change in its leadership). The majority responds that stare decisis is not an inexorable command and that Congress's failure to act is of no great significance. Translation: we will overrule as we see fit, and don't feel the need to defer to Congress on this or much of anything else.

The dissent highlights this shadowboxing at the end, where Breyer flatly states: "It is difficult for me to understand how one can believe both that (1) satisfying a set of stare decisis concerns justifies overruling a recent constitutional decision, Wisconsin Right to Life, Inc., ante, at 19-21 (Scalia,J., joined by Kennedy and Thomas, JJ., concurring in part and concurring in judgment), but (2) failing to satisfy any of those same concerns nonetheless permits overruling a longstanding statutory decision."

It could all be coincidence, of course. The liberal justices have dissented on some previous cases. But I fear that what's really happening is that ideology has infected an area of law that used to be about as non-ideological as the Supreme Court gets. And if ideology were to infect this area of the law, then why should we have any confidence in the Court's antitrust judgments, and why shouldn't Congress rein in the Court's broad authority under the antitrust statutes?

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The Supremes rule resale price maintenance can be OK:

Here is one story.

The case for pure illegality of resale price maintenance (RPM) has never been very strong. Since we don't understand price stickiness well, it is no surprise we also don't understand RPM very well either. At least on the surface that is an argument for a case-by-case approach if not something even looser.

My casual guess is that > 50% of RPM represents a desire to collude and raise prices. Nonetheless allowing RPM, even when it is collusive, just doesn't matter very much. RPM enforcement has been weak for various periods of time, most of all under the Reagan Administration, without retail disaster striking.

Market-oriented economists exaggerate the "ancillary services" hypothesis developed by Lester Telser, namely that RPM keeps services flowing ("informative stereo salesman" is the paradigmatic example). Supposedly, without RPM everyone would get sales help at the expensive store but buy at the discount store; in the equilibrium all stores would be discount stores and poor consumers would wander through the world without sales help. In reality RPM has often been used for lots of the small or even trivial items you see for sale in drugstores.

I attach greater credence to the Ben Klein hypothesis that RPM represents a kind of "efficiency wage" to discipline retailers and force them — through threat of product cut-off — to present the item in a desirable fashion. (In Telser's hypothesis the services flow automatically after RPM is instituted, through a desire to capture customers and extra profits, but why should the extra services supplied then be the ones subject to the free-rider problem, rather than some other side benefits?)

Even when cartelization is the motive, I don't worry that Colgate will monopolize the market for toothpaste. Most or all retail products face lots of competition from the products of other manufacturers. I also don't think that so many business decisions should become primarily legal decisions; our government has enough real crimes to look after. So in my view RPM should be close to per se legal (certainly not per se illegal), with some possible exceptions for resource-based monopolies, not that I can think of any relevant exceptions in the retail context. Arguably government should not enforce RPM agreements, though product pulling is in any case the major means of implementation.

Here is Greg Mankiw on resale price maintenance. Here is an Econoblog on resale price maintenance. Here is Wikipedia. Here is some Supreme Court discussion.

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Parents Involved in Community Schools v. Seattle School District, the case involving race in public schools, is here. Chief Justice Roberts wrote the plurality/majority opinion that had Kennedy in parts but lost him in others. Justice Kennedy concurred; according to Kennedy, Roberts' opinion went too far in some respects. Justice Breyer filed a 77-page dissent, joined by Stevens, Souter, and Ginsburg, which argues that the plurality opinion would "break the promise of Brown." Justice Thomas concurred, filing a 35-page response to Justice Breyer. Justice Stevens filed a brief dissent, which among other things expresses JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
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Panetti v. Quarterman: The Court handed down Panetti v. Quarterman this morning, a case on application of the death penalty to individuals with serious mental illness. In an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, & Breyer, the Supreme Court overturned a Fifth Circuit ruling that a death row inmate can be executed if he understands that he is being put to death for murder but due to mental illness thinks the state's reason is a sham. The key passage:
Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.
Justice Thomas dissented, joined by Roberts, Scalia, and Alito. Justice Thomas argues that the Court fudged its way around AEDPA to get to the merits of the case de novo, and that once there the Court's view of the constitutional requirements have no basis in the key precedent in the area, Ford v. Wainright.
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Shortcomings of the Thomas-Scalia view of Wilkie v. Robbins and Damage Remedies for Violations of Constitutional Rights:

As promised in my last post, I will now critique the Thomas-Scalia view of Wilkie v. Robbins. The two most conservative Supreme Court justices categorically reject the principle - most clearly established in the 1971 case of Bivens v. Six Unknown Federal Agents - that federal courts may sometimes exercise the power to order the government to pay damages in order to remedy the violation of a constitutional right. As explained in Thomas' concurring opinion (joined by Scalia):

The Court correctly concludes that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend Bivens even if its reasoning logically applied to this case. “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., joined by THOMAS, J., concurring). Accordingly, in my view, Bivens and its progeny should belimited “to the precise circumstances that they involved.” Malesko, supra, at 75.

Thomas and Scalia believe that Bivens was wrongly decided, and its reach should be limited as much as possible. As I noted in my previous post, the Thomas-Scalia view - unlike Justice Souter's majority opinion - has the virtue of treating property rights the same as other constitutional rights. All will receive the same (sometimes inadequate) level of protection.

But that is about the only virtue of the Thomas-Scalia view. In other respects, it is seriously flawed.

The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution. In some cases, an award of damages is the only adequate remedy available, or even the only possible remedy of any kind. Consider, for example, the case of an innocent man victimized by an unconstitutional search or seizure. The standard remedy of the exclusionary rule is useless to him - at least if he is going to be acquitted anyway. The only feasible way to compensate him for the violation of his rights is an award of damages.

In some cases, other remedies are available, but they are not sufficient to fully remedy the violation of the victim's rights. The Wilkie majority opinion concedes (and Thomas and Scalia do not dispute) that this was true in Wilkie itself. In such situations, it is axiomatic that the courts have a duty to provide a remedy that fully compensates the victim for the violation of his constitutional rights. Any other approach is both unjust to the victim and provides poor incentives for the government by allowing it to avoid bearing the full cost of its actions.

Justices Thomas and Scalia seem to believe that judicial decisions ordering a damages remedy somehow constitute judicial policymaking in a way that decisions ordering other kinds of remedies do not. I agree that damage remedies are sometimes unwise and often inferior to other available remedies. However, I don't see why a damage remedy is inherently more "activist" or more intrusive on the powers of the political branches than alternative remedies such as injunctive relief or facial invalidation of a statute - remedies that Thomas and Scalia consider to be perfectly legitimate. In many cases, an injunction or invalidation of a statute will actually constrain the political branches more than damage payments do.

Some defenders of the Thomas-Scalia position argue that the choice of remedy for rights violations by federal agents should be left up to Congress. If Congress provides an adequate remedy by statute, perhaps the courts should indeed defer to it even if the judges would personally prefer some other remedial scheme. Often, however, Congress will provide either an inadequate remedy or no remedy at all. Congress often cannot be trusted to provide adequate remedies for violations of constitutional rights for exactly the same reasons that it cannot be trusted to refrain from enacting policies that cause rights violations in the first place. The institution of judicial review is necessary precisely because the legislative and executive branches will often be tempted to exceed constitutional limits on their authority. That temptation applies to both rights violations and remedies. Indeed, a legal regime under which the government can get away with refusing to remedy violations of constitutional rights is little different from one without any constitutional limits on government power at all.

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Wednesday, June 27, 2007

Tomorrow Morning: Don't forget to tune in tomorrow morning for what will probably be the release of the Supreme Court's last three decisions of the Term: the school/race cases (likely win for the conservatives), the death penalty/mental illness case (likely win for the liberals), and the antitrust/retail prices case (likely win for, well, I have no idea, I didn't follow it). Lyle Denniston offers us his best guess for how the morning will unfold here.

  In a perfect world, the Court would post the opinions on the Court's website just as the opinions are announced in the courtroom. That way, the Court wouldn't induce the 30 minutes or so of anxiety that follows when Supreme Court geeks around the country know the outcome in important cases but can't yet access the opinions. But we're not yet in that perfect world, so instead we have to hit "refresh" over and over until opinions start to show up at SCOTUSblog or How Appealing around 10:30 or 10:45.

  Anyway, come back tomorrow for the goods; I'm sure we'll have commentary throughout the day.
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Federalist Society Webcast on SCOTUS Term:

The Federalist Society will have a webcast tomorrow afternoon from noon-2:00 on the SCOTUS term in review. You can watch it here. Ilya and two other GMU colleagues (Nelson Lund and Neomi Rao) are participating along with David Rivkin and Gene Schaerr.

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Lithwick on What's Wrong With the Roberts Court: Over at Slate, Dahlia Lithwick is trying to figure out why she has such strong objections to the Roberts Court. Lithwick notes that among liberal commentators, it is widely believed that the problem with conservative Justices is that they are "just plain mean." Lithwick suggests the problem may be elsewhere; perhaps the conservatives are not so much personally mean as lacking in some other quality. But she can't quite figure out what that quality is. She writes:
  Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
  . . . So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
  My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.
  Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?

  UPDATE: Reader suggestions probably should be phrased to allow the narrative to flip 180 degrees tomorrow when the school cases are handed down.
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What Justice Thomas's Morse Concurrence May Mean for University Speech Codes:

Justice Thomas's concurrence in Morse argues that the First Amendment doesn't restrict public school authorities' power over student speech. But while the opinion focuses only on the issue at hand -- speech in K-12 schools -- a good deal of the arguments there would apply equally to speech in colleges and universities.

Justice Thomas's argument is basically structured as follows; my remarks regarding to how this argument applies to universities appear in italic.

1. Original meaning: "[T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." This also extends to the First Amendment as applied to the states by the Fourteenth Amendment, which was enacted in 1868. I'm not an expert on the history of speech restrictions in universities, but my tentative understanding is that the First Amendment was not seen as constraining such restrictions, at least until the 1950s or later.

In particular,

a. "Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800's, no one doubted the government's ability to educate and discipline children as private schools did." Public colleges and universities likewise developed after private ones, and in some measure as alternatives for private ones.

b. "Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled 'a core of common values' in students and taught them self-control.... Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong [including] idleness, talking, profanity, and slovenliness[]." [Footnote: "Even at the college level, strict obedience was required of students: 'The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.'"] The footnote expressly suggests this reasoning historically applied to college students.

c. In particular, public schools were seen as operating "in loco parentis," which is to say in place of the parents and with the rights that parents have to constrain and discipline their children. [Footnote: "My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student's age. Therefore, the fact that Frederick was 18 and not a minor under Alaska law is inconsequential."] The footnote expressly limits the argument to K-12 schools, but I'm not sure the logic can be so limited: As I understand it, colleges were also understood as operating in loco parentis, partly because throughout much of America's early history the age of majority was 21 rather than 18.

2. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech."

a. In particular, this is because "Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934) ('California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course ...')." Again, this expressly relies on a university case; and its logic applies even more to public universities than to public schools -- no-one is legally requiring anyone to go to a public university or to any university at all, while children are legally required to go to at least some public K-12 school.

b. "If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process." This too applies fully to universities, though of course substituting pupils (and in some measure their families) for parents.

c. The main alternative to this approach—the Tinker standard for when student speech is to be protected—is too subjective and malleable. This may well not apply to universities. The current rule, as applied by the few Supreme Court cases on university student speech and by the many more lower court cases, seems to be that student speech (outside class and class assignments) is fully protected, subject of course to the usual caveats applicable in all speech contexts. Such a rule would be pretty clear; the question is whether Justice Black would think that it's right.

d. It's important to maintain "the traditional authority of teachers to maintain order in public schools. 'Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.'" This too may not apply to universities. First, my sense is that broad public and elite opinion agrees that outright "disorder" is not as serious problem at universities as it is in K-12 schools. Second, my sense is that the same broad opinion takes the view that some amount of verbal defiance and even disrespect (outside the classroom) is healthy at universities, even if it's dangerous at K-12 schools. If Justice Thomas shares these views, and sees these pragmatic judgments as relevant, he may thus conclude that a different rule should apply for university students than or K-12 students.

e. "To elevate [student] impertinence [uttering at a school event what is either '[g]ibberish' or an open call to use illegal drugs] to the status of constitutional protection would be farcical and would indeed be to 'surrender control of the American public school system to public school students.'" Again, this might not apply to universities, for much the same reasons as those I mentioned under 2.d.

* * *

So the bottom line: If Justice Thomas continues to focus on original meaning in free speech cases, or if he relies on the theory that those who "seek[] education offered by the State" must accept the requirements imposed by the State, then it seems likely that he would say that the First Amendment doesn't bar public universities from imposing speech restrictions on their students.

On the other hand, if Justice Thomas takes a more functional or pragmatic approach, focusing on the role of universities in public debate, and the role of public debate in universities, then he may take the view that university student speech is fully protected. (Of course, if I'm mistaken, and there is an 1800s and early 1900s tradition of protecting university student speech, either as a constitutional matter or at least as a matter of firmly embedded practice -- consider Justice Thomas's defense of anonymous speech in McIntyre v. Ohio Elections Commission, which was based on the tradition of anonymous political speech around the time of the Framing -- then Justice Thomas may also reach a pro-protection result on original meaning grounds, focusing on the meaning of free speech at the time the Fourteenth Amendment was enacted.)

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Justice Thomas as Return of Justice Black?

I noted a while back that Justice Thomas in many ways resembles Justice Hugo Black, who served on the Court from the late 1930s to the early 1970s. Justice Black was mostly seen as a liberal Justice, and Thomas as a conservative, but both shared a distinctive style that sometimes made them mavericks: Both generally took the view that constitutional provisions should be interpreted the way they were understood when the provisions were written. Both preferred clear, bright-line rules to tests that required more judgment in their application. And both were much more willing than their colleagues to reconsider settled precedent.

This is particularly clear in Justice Thomas's concurrence in the K-12 school speech case, Morse v. Frederick: He was the only Justice willing to reverse Tinker v. Des Moines Independent School District, the 1969 case in which the Court first expressly held that government-run K-12 schools generally may not restrict student speech. (The flag salute case, West Virginia Board of Education v. Barnette, held in 1943 that schools may not require students to salute the flag; but as of Tinker, it wasn't clear whether Barnette was limited to the unusual circumstance of compulsory affirmation of belief.) He rested most of his argument on what he argued was the original meaning of the First Amendment, as applied to the states through the Fourteenth. And he also stressed that the Tinker standard, coupled with the modifications added since then (including by the majority in Morse itself), was too subjective to be a workable and principled rule of law.

And interestingly, in this case Justice Thomas's bottom line as well as his decisionmaking style matched Justice Black's: Justice Black was the one Justice in Tinker who would have held that government-run K-12 schools have a free hand in restricting student speech.

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New York Times on Speech Codes and "Indoctrinate U":

Today's NY Times has an article sort of commenting on Evan Coyne Maloney's documentary Indoctrinate U.

Greg Lukianoff at FIRE has a nice analysis of some problems with the article here, explaining the facts of the Vassar situation that is the centerpiece of the article.

What struck me about the article, however, was the utter confusion by the reporter (Joseph Berger) about the central point of the article--the distinction between controversial ideas on one hand and abusive or derogatory language on the other.

Greg's post summarizes the Vassar situation as follows:

Back in 2005, The Imperialist, a publication of Vassar’s Moderate, Independent and Conservative Alliance (MICA), published an opinion piece criticizing what the anonymous author perceived as the balkanization of campus along the lines of race and sexual orientation. The article read:

How is diversity achieved when those students are voluntarily confining themselves to ghettos of the ALANA [African, Latino, Asian and Native American] Center and Blegen House [“A lesbian and gay center for the study of social change”]? I find the objective of diversity to be utterly meritless, suggesting that our colleges should become some zoological preserve in some paternalistic attempt [to] benefit our ‘non diverse’ students….

While it’s understandable that students might be upset by this article, one could easily argue that the central point expressed here—that students should not be encouraged to divide into race- and orientation-based enclaves—is in fact anti-racist and egalitarian. However, Berger presumed throughout my interview that the article was simply hurtful and of little redeeming value.

Berger's article characterizes the situation thusly:

The Imperialist, a publication of the school’s Moderate, Independent and Conservative Student Alliance, published a contributor’s article in 2005 that criticized social centers for minority and gay students. The article called such centers “ghettos” and said they turned Vassar into a “zoological preserve.”

Students complained that the language was insulting and called for banning The Imperialist. For weeks, the issue was debated by the student association, which finances the publication. Ultimately, the group withheld its money for one year and publication was suspended.

Accept for the sake of argument that the treatment of the newspaper should turn on whether the problem here was the "offensive language" that could be subject to punishment ("ghettos" and "zoological preserve") rather than the controversial ideas that should not (the college should not encourage students to separate themselves by race). The distinction seems somewhat tenuous to me in the first place, but especially so here as the precise words in question were being used for a rhetorical point and not with an intention to insult or harrass fellow students. But let's set that aside and accept the premise that offensive languge can be punished (as opposed to offensive ideas) and that in fact the language used here was reasonably offensive. In fact, it does appear that there were some other egregious facts that were omitted from the Times article and for which the newspaper actually apologized, so I am not intending to defend the content of the publication here.

If this distinction between language and ideas is the premise, however, then Berger's argument quickly descends into confusion. Consider the quote he uses that he believes illustrates the distinction:

Students like Victor Monterrosa, a son of Salvadoran immigrants who recently graduated, still thinks that the question of whether students should be clustered by race or sexual orientation does not deserve a forum since Vassar “is supposed to protect diversity” and “these discussions ended up making us more polarized.”

“There are students who feel comfortable putting us on the back burner who ended up fighting for free speech on campus,” he said.

Now it is quite clear from this quote that Mr. Monterrosa's objection is to the content of the article, not its language--according to Berger, Mr. Monterrossa said that the question of whether students should be clusterd "doesn not deserve a forum." It may be that Berger has some other quotes that would have actually illustrated his point that this was about the language, not the ideas. But that he chose this particular quote and believes that it illustrates his point suggests to me that he simply doesn't understand the distinction that he is trying to establish.

The same confusion arises a few paragraphs later:

Still, Vassar deserves credit because, as students explained, the dispute was not focused on whether The Imperialist could argue that a center exclusively for minority students fragmented the community; it was over whether the language used to express the idea was offensive.

The wider society, after all, has not resolved the issue of abusive language. Limits are evident in hate crime laws, the firing of Don Imus and this week’s Supreme Court ruling against a high school student who displayed a “Bong Hits 4 Jesus” banner.

Again we see Berger's confusion. The objection to Imus was actually his use of derogatory language and which was used simply to insult and ridicule. But the "Bong Hits 4 Jesus" case was premised on the idea that the message was inappropriate for school, not that the language was offensive.

Again, this whole discussion is predicated on taking as given Berger's distinction between abusive language on one hand and "offensive" ideas on the other. But if that is a disntinction that is supposed to have analytical force, it is important to understand what exactly it means.

By the way I saw an earlier edition of the movie "Indoctrinate U" and found it informative, illuinating, and terrifically enjoyable. Berger's more general critique of the movie is completely silly. It is a good movie and Maloney lets the students and faculty involved in these incidents simply tell their story. Then he runs some amusing Michael Moore-style ambushes on hapless college administrators.

I understand that the production company is trying to get it into wider circulation and I certainly recommend seeing it if it comes to your town. It is really well done and there is really some pretty outrageous stuff portrayed in the movie and some of the quotes from some of the participants are simply hilarious.

You may recall that Evan did the powerful "Crystal Morning" film on the fifth anniversary of 9/11 that I mentioned last fall.

Update:

You will note that in the original post I observed that the Times article "sort of" comments on Indoctrinate U. The reason is because even though it starts off talking about the movie, the Vassar story isn't actually in the movie as Evan Coyne Maloney explains here. He also explains what is in the film and addresses the larger issue as to why the rest of us should be more concerned about free speech on campus than Berger is (a point that Greg Lukianoff emphasizes as well in his post).

Update:

Yee-ouch my original post omitted an extremely important "not" which I have corrected. The sentence now reads (as I originally intended it to): "In fact, it does appear that there were some other egregious facts that were omitted from the Times article and for which the newspaper actually apologized, so I am not intending to defend the content of the publication here." Sorry for any confusion.

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"Legitimate" and "Illegitimate" Government Motives in Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:

In Wilkie v. Robbins, Justice Souter's majority opinion denied the plaintiff a damage remedy for the government's attempts to harass him into giving up his property rights without compensation, despite the fact that the latter is an obvious violation of the Takings Clause of the Fifth Amendment.

As Jonathan Adler points out, Souter has a hard time distinguishing this case from other instances of government retaliation for exercising a constitutional right where he believes that a Bivens damage remedy is acceptable. He claims that the key difference is the motive for the government's action:

[U]nlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands.

Thus, seeking to acquire land is a "legitimate" government purpose, while punishing an individual for antigoverment speech is not. The problem is, however, that constitutional rights regulate not only the ends that government may pursue, but also the means that it can use to achieve them. In Wilkie, the government's desire to acquire an easement onto Mr. Robbins' property was not in and of itself unconstitutional. However, the effort to achieve this purpose by using coercion and harassment to force the owner to give up the easement without compensation was an unconstitutional means to an otherwise legitimate end.

To take up Souter's First Amendment analogy, it is perfectly legitimate for government officials to try to stimulate public support for their policies. It is not legitimate, however, for them to use the suppression of opposing speech as a means to this end. If they punish antigovernment speakers for their speech, Justice Souter surely would not deny the victims a damage remedy simply because the government's ultimate purpose (increasing public support for its policies) was not in itself unconstitutional. Yet he fails to draw the obvious parallel conclusion in the property rights context. For that reason, his opinion realizes my fear that a victory for the government in this case would reinforce the second-class status of constitutional property rights.

Souter further argues that the government's actions were just an instance of "hard bargaining" to achieve a legitimate end. Government agents repeatedly trespassed on the Robbins' property and harassed his customers (including, as Justice Ginsburg points on in her dissent, videotaping female customers in the act of relieving themselves). Justice Souter himself, while ignoring some critical facts, described the Bureau of Land Management's actions as a a massive six year long campaign against Robbins amounting to "death by a thousand cuts." If the BLM had engaged in the same kind of "hard bargaining" in order to get Robbins to stop criticizing BLM policy or to consent to an otherwise illegal search of his house, Justice Souter and his colleagues in the Wilkie majority would not think of denying him a damage remedy (at least not because the government's ultimate purposes were "legitimate"). Here too, the second class status of property rights rears its ugly head.

Scalia and Thomas are exceptions to this generalization about the majority justices. They would abolish Bivens damage remedies almost entirely, whether the rights violated by the government are property rights or not. The Thomas-Scalia approach is, in my view, deeply flawed. However, it does have the virtue of treating property rights and other rights the same. All would be underprotected to more or less the same degree. If time permits, I hope to do a more thorough critique of the Thomas-Scalia position in a later post.

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Calling the Target as An Investigative Tactic: Imagine you're a police detective and you're investigating a suspect who has not yet been charged. Why not call the suspect at home (or on his cell phone), explain the allegations against him, and politely ask him to respond?

  If the suspect is really smart, he'll refuse to speak. But as we know from the Miranda context, a lot of suspects won't be smart: I would guess that a lot of suspects would confess at least in part. The call won't trigger Miranda because the suspect obviously is not in custody; and it won't violate the Sixth Amendment because no charges have been filed. Plus it's cheap and easy, and its informality may make suspects more willing to talk. Why not try it? (I'm assuming the suspect already knows he is under investigation or else the police don't mind informing him of it.)

  Okay, now let's change hats. Imagine you're a legislator rather than a police detective. Would you support a law prohibiting law enforcement officers from calling suspects on the phone in an effort to get them to make incriminating statements?
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Immigration Bill Open Thread: I haven't followed the immigration bill closely, although it's obviously a very important piece of legislation. I have a vague sense I support it: We Americans have an internally incoherent set of views towards illegal immigration, and given that occasional fixes like this are probably inevitable over the long haul.

  But I'm guessing VC readers have a lot of strong views about this issue, and would be interested in voicing them. In light of that, here's an open thread on the immigration bill. Comment away. As always, please keep it civil.
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Following Cheney's Tracks through Environmental Policy:

The fourth and final installment of the Washington Post series on the Cheney Vice Presidency focuses on the role of the Vice President’s office in the formulation and implementation of environmental policy. As portrayed by the Post, Cheney repeatedly intervened directly in specific environmental policy matters, such as the Klamath River Basin controversy, Yucca Mountain, and snowmobiling in Yellowstone National Park, but typically “left no tracks” of his involvement.

By combining unwavering ideological positions -- such as the priority of economic interests over protected fish -- with a deep practical knowledge of the federal bureaucracy, Cheney has made an indelible mark on the administration's approach to everything from air and water quality to the preservation of national parks and forests.

He is also blamed for inducing then-EPA Administrator Christie Todd Whitman to resign. ["Blamed"? Isn't this something for which he should get credit?] This article may not have as much for ConLaw junkies as the series prior installments, but for those who want to see the insides of our outdoors policies, it is a must read.

Related Posts (on one page):

  1. Following Cheney's Tracks through Environmental Policy:
  2. Cheney and the Supreme Court Nominations Process:
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Bugliosi on the Kennedy Assasination: I have admired Vincent Bugliosi ever since reading Helter Skelter: The True Story of the Manson Murders, describing his prosecution of Charles Manson. Although other some prosecutors carped at the time that he took credit for the accomplishments of others, claims which I have no way of assessing, I thought the book admirably described a model of how a prosecutor ought to prepare for a case. I highly recommend it to law students interested in practicing criminal law. Plus, it's a great read.

I am also a big fan of Bugliosi's book Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, describing the catastrophic failure of the prosecutors in the O.J. Simpson case to competently do their job. It fit perfectly with my reaction to watching on TV their pathetic attempts at presenting evidence and argument, but provided much unreported background information on just how bad they were. No one should blame the jury about the outcome of that case without first reading this book. [Aside: on Sunday night I saw Norm McDonald at the Improv. MacDonald is memorable for his line as anchor for Saturday Night Live's Weekend Update. With a picture of a smiling OJ over his shoulder, McDonald announced: "Well, it's official: Murder is now legal in the State of California."]

Now Bugliosi has a massive new book debunking conspiracy theories about the Kennedy assassination. I am not sure when I will have the chance to read it, but found this interview with him discussing the assassination to be most interestimng.

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Wilkie and the "War on the West":

Any backlash against the Supreme Court's Wilkie v. Robbins decision is likely to come from the West. Robbins' claims resonate in the West in a way it may be difficult for landowners in other parts of the country to appreciate. In many western states government ownership of land is the norm, and private property interests are inexorably intertwined with the interests and authorities of various federal agencies. Approximately one-half of the land west of the Mississippi is owned by the federal government, and in some states the proportion of federal ownership exceeds 80 percent. To complicate matters, in many areas federal ownership forms a patchwork across the landscape, intermingling with private and state land. For this reason, ranchers like Robbins cannot operate without coming into constant contact with federal officials. This de facto dependence on federal lands is difficult for non-westerners to appreciate, and makes western landowners in the West particularly vulnerable to the sort of bureaucratic malfeasance alleged in this case.

Western landowners are also more likely to view Uncle Sam as an undesirable neighbor (apart from any federal subsidies they may receive). In the private sphere, adjoining landowners often accept minor indignities and trespasses without conflict, much as passersby rarely come to blows after brushing by one another on a busy street. Private landowners have a strong incentive to get along with their neighbors, as the benefit when other landowners reciprocate. Relations with the federal government are not quite the same, however. If federal officials decide to adopt a “zero-tolerance” approach, they can make life very difficult for an individual landowner at little cost to themselves. Given the need for rights of way, easements, and access to federal lands, there is ample opportunity for bureaucratic mischief through arbitrary actions. If an agency cancels permits or takes other actions without sufficient justification, he may be able to win his rights back through an administrative appeal, but there is no real remedy against a campaign of harassment and intimidation of the sort Robbins alleged.

Perhaps unintentionally, one effect of the Wilkie opinion may be to increase tensions and hostility between private landowners and federal agencies in the West. Federal officials now know they have less to fear from litigious landowners and may feel emboldened to act more aggressively in pursuing federal interests. Private landowners may also learn that any time they fail to press any legal claim against the government, they are undermining their ability to obtain relief. As the majority notes:

It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.
Yet relief is now only available for the individuals parts, rather than the whole.

Robbins waited to sue until it was clear he faced a “death by a thousand cuts,” at which point he sought relief for the entire harassment campaign. With this avenue closed, the only option for Robbins and other landowners in his position is to litigate and appeal each and every federal action, no matter how piddling or small, that is potentially adverse to the landowner’s interests. Indeed, the potential for administrative relief for some of the actions about which Robbins complained was one of bases for the majority’s holding. Now that the Court has completely a landowner’s ability to seek relief for a series of deliberate actions, there could be an escalation of legal conflict between landowners and government agencies, and it is hard to see how this would be in anyone’s interest.

In his majority opinion, Justice Souter details all the instances in which Robbins could have filed administrative actions, appeals, or other claims, but failed to do so. I doubt Robbins, or similarly situated landowners, will be likely to exercise such forbearance in the future. They will lawyer up instead, lest they suffer Robbins' fate. Given the majority’s professed concern that allowing Robbins’ claim would unleash a waive of similar federal lawsuits, this is quite an ironic twist.

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Barring Bivens Actions for Property Owners:

What makes Wilkie v. Robbins a difficult case is that Robbins is seeking the extension of a judicially created cause of action to cover his circumstances, when a legislatively authorized remedy would be preferable. As the majority framed the central issue:

The first question is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government’s employees.
For those who view Bivens and its progeny as Warren Court judicial activism, this is a tough pill to swallow. However much they may wish to protect private property owners from federal bureaucrats, they have no interest in broadening the range of Bivens actions available in federal court. This is the explicit basis for Justice Thomas’ dissent. Joined by Justice Scalia, Thomas denigrated Bivens as “a relic of the heady days in which this Court assumed common-law powers to create causes of action,” and argued that Bivens and its progeny should be limited ‘to the precise circumstances that they involved.’”

If one accepts Justice Thomas’ premise that Bivens was wrong and should be limited, then it is obvious that Robbins’ claim should fail. Yet Justice Souter’s majority opinion is not willing to go this far. Instead, it seeks to maintain the more difficult position that Bivens actions are fully legitimate, but that the Robbins’ specific claims are not the sort for which a Bivens-like action should be available. Bivens actions are disfavored, Justice Souter suggests, and there are many reasons, such as the potential availability of other avenues of relief, that can counsel against allowing such actions to proceed.

The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.
Set alongside Justice Ginsburg’s dissent, I do not find Justice Souter’s arguments all that convincing. The claim that a deliberate campaign of harassment intended to extort a constitutionally protected property interest is not distinguishable from a government official’s “legitimate zeal on the public’s behalf in situations where hard bargaining is to be expected” rings hollow. Under what circumstances would legitimate “hard bargaining” by a federal employee include the repeated commission of illegal and tortuous acts, and harassment that extended to efforts to videotape a landowner’s guests “even while the guests sought privacy to relieve themselves.” I am very sympathetic to the need for line-drawing, lest the approval of a Bivens action produce a rash of meddlesome litigation, but the facts alleged in this case are far from any reasonable line demarcating what actions should be redressable.

Justice Souter’s majority opinion eases the way to this result with a muted account of the facts that led to Robbins’ suit. In an early footnote Souter says the Court details the facts “in the light most favorable to Robbins” because the case arose on an interlocutory appeal from the denial of the federal employees’ motion for summary judgment. Yet as the recitation of the facts in Justice Ginsburg’s dissent makes clear, the Souter majority soft-pedals key aspects of the BLM officials’ conduct, and ignores others. This serves the rhetorical purpose of downplaying the injustice suffered by Robbins, easing the way for the Court’s denial of an avenue for relief, but it also misrepresents the facts for purposes of the appeal.

If an individual should be able to seek money damages against government officials that violate his Fourth Amendment rights, it seems hard to maintain that there is no cause of action for the extended, deliberate campaign of intimidation and harassment of a property owner who has done nothing more than assert his constitutionally protected property rights. Robbins had remedies for some of the actions taken by the BLM, but not all. Moreover, many of the actions, by themselves, would not be worth the cost to challenge. It is only when the BLM officials’ actions are taken together that they become something worth fighting over. But under Wilkie, that is precisely what landowners in Robbins’ position cannot do.

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Griles Goes to Jail:

Former Deputy Interior Secretary J. Steven Griles will go to jail for lying to Congress, a judge concluded yesterday. Griles allegedly obstructed the Congressional investigation into the activities of lobbyist Jack Abramoff.

Griles pleaded guilty in March to lying to the Senate about his relationship with Abramoff. In the plea agreement, prosecutors recommended a sentence of five months of house arrest and five months in prison.

But [District Court Judge Ellen] Huvelle imposed a sterner penalty of 10 months in prison and a $30,000 fine. She said she wanted to send a message to deter wrongdoing by high-ranking government officials. Defense attorneys had asked for three months of home detention, community service and a "reasonable fine." . . .

The judge said that years of public service were no cause for leniency. "You held a position of trust as number two in the Department of Interior, and I will hold you to a higher standard," Huvelle told Griles. "I find that, even now, you continue to minimize and try to excuse your conduct and the nature of your misstatements."

UPDATE: Those commenters who noted there was no reason to use the word "allegedly" above are correct. Griles pled guilty and was convicted. Since the beginnings of the Bush Administration, the Interior Department has been divided between those who sought to pursue principled conservative environmental policies, and those who pandered to industry interests and well-connected lobbyists. There is little question that Griles fit squarely into the latter camp.

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Farber on the Ninth Amendment: Professor Dan Farber of Boalt Hall has a new book on the Ninth Amendment called Retained By the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have. I haven't read it yet, though I gather he disagrees to some degree of my take on the Ninth Amendment. Here is a video of him discussing the Ninth Amendment at Cody Books in San Francisco.

Update: Over on Positive Liberty, the always insightful Tim Sandefur has a highly critical comment on Farber's take on the Ninth Amendment. Yes, I did see the one page in Farber's book where he discusses my work and I share Tim's concerns. Considering he chose to write a whole book on the Ninth Amendment, Farber devotes far too little space to the important issues he raises on this single page. Read the whole thing but here is a taste:

How many other things are wrong with this paragraph? Well, first of all, the text of the Ninth Amendment does not refer to “discrete packages” of rights. It refers to “others retained by the people.” The term “others” is undifferentiated! It echoes the Declaration’s reference to “among these [rights]”—that is, this text exists specifically to point out the fact that the act of differentiating some rights and setting them aside as discrete packages must not be construed to deny the existence of an undifferentiated (and insusceptible of differentiation) mass of other rights that together make up the concept of liberty. The Ninth Amendment would be self contradictory if it were interpreted in a way that required that all the rights to which it refers be “discrete packages.”

Farber’s error here is not unlike the error committed by Bork and others, who assume that rights must be identified and specified before they can be accepted as constitutionally recognized entities. The Amendment exists precisely to block such a theory: it exists because liberty is made up of an infinite number of undifferentiated rights, and to cut some out from the herd might lead some people, like Bork and Farber, to assume that only those which have been cut out deserve respect.

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Monday's Big Environmental Decision -- NAHB v. Defenders of Wildlife:

The Supreme Court released another major environmental decision Monday, National Association of Home Builders v. Defenders of Wildlife (NAHB). As in Massachusetts v. EPA, environmentalist groups sought to expand the scope of a major environmental law, over the opposition of the Environmental Protection Agency. Also like Mass v. EPA, the Court split 5-4. Unlike Mass. v. EPA, however, the EPA and industry groups won while the environmentalist groups lost.

NAHB centered on whether the Endangered Species Act requirement that federal agencies consult with the Fish & Wildlife Service (or National Marine Fisheries Service) to insure that agency actions not threaten endangered and threatened species applies to non-discretionary agency actions. At issue was the EPA’s decision to approve the transfer of Clean Water Act (CWA) permitting authority to the state of Arizona. The CWA provides that the EPA “shall” transfer such permitting authority unless the EPA concludes that the state in question fails to meet one of nine specific criteria listed in the Act. Defenders of Wildlife and other environmentalist groups argued that the EPA was also required to consider whether the transfer of permitting authority could jeopardize endangered or threatened species under ESA Section 7(a)(2). As characterized by the Court, Defenders argued, and the Ninth Circuit held below, that Section 7(a)(2) “effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned.” Interestingly enough, the relevant federal agencies – the EPA, FWS, and NMFS – all took the contrary view.

The Court, in an opinion by Justice Alito, rejected the environmentalist argument, holding that Section 7(a)(2) of the ESA only applies to discretionary agency actions, and should not be read to modify existing agency statutory obligations. If the CWA provides that the EPA “shall” delegate permitting authority unless one of nine specific criteria is satisfied, then the EPA cannot consider – and is certainly not obligated to consider – other criteria not specified in the Act. Thus, Section 7(a)(2) imposes a broad mandate on federal agencies, but not a “super-mandate” that effectively amends existing statutory authorities. This interpretation of the ESA, the majority noted, was that embraced by the agencies entrusted with implementing the Act, and this interpretation was due deference from the Court. As Justice Alito concluded,

Applying Chevron, we defer to the agency’s reasonable interpretation of ESA §7(a)(2) as applying only to “actions in which there is discretionary Federal involvement or control.” 50 CFR §402.03. Since the transfer of NPDES permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in §402(b) of the CWA, it follows that a transfer of [CWA] permitting authority does not trigger §7(a)(2)’s consultation and no-jeopardy requirements. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and these cases are remanded for further proceedings consistent with this opinion.
In the course of his opinion, Justice Alito also took some shots at the Ninth Circuit’s opinion below, specifically noting that if the EPA’s decision to transfer permitting authority to Arizona had been arbitrary and capricious, as the Ninth Circuit held, “the proper course would have been to remand to the agency for clarification of its reasons. . . . But the Ninth Circuit did not take this course; instead, it jumped ahead to resolve the merits of the dispute.”

Justice Stevens wrote the primary dissent, arguing that the language and intent of the ESA required that it apply to all agency actions, even those otherwise constrained by statutory delegations of authority. The apparently conflicting language of the ESA and CWA could be reconciled, Stevens argued, without limiting Section 7(a)(2) to discretionary agency actions. Under this reading, Section 7(a)(2) grants federal agencies the authority to consider – indeed, obligates them to consider – factors that they would otherwise lack statutory authority to consider. This is a significantly broader reading of Section 7(a)(2) than courts and agencies have traditionally adopted. It is one thing to argue that Section 7(a)(2) requires all federal agencies to consider the impact on species – and avoid such impacts – when permissible. It is quite another to say that Section 7(a)(2) means that when a statute tells an agency “Do X unless you find A, B, or C,” an agency is also required to consider and act on “D.”

Justice Stevens approach to agency discretion here is also at odds with his approach in Massachusetts v. EPA. In NAHB, Stevens argues that the EPA’s “authority to transfer permitting authority” to states is “discretionary.” Although the CWA specifically enumerates nine criteria as potential grounds for the EPA to refuse to transfer permitting authority, Justice Stevens argues that the Act leaves the EPA ample room to exercise its independent judgment, and therefore including Section 7(a)(2) consultation does not alter the nature of the EPA’s authority under the CWA. In Mass v. EPA, however, Justice Stevens (correctly in my view) argued that the EPA could not justify a failure to regulate carbon dioxide as a pollutant based upon considerations other than those specifically mentioned in the Clean Air Act (CAA). Because the CAA specifically identified the criteria for the EPA to consider, it had to base its decision on an evaluation of such criteria. Yet confronted here with language in the CWA that is arguably more constraining than the relevant CAA provision, Justice Stevens argued that the EPA still had room to consider other factors – room that a straightforward reading of the CWA would seem to deny.

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Wilkie v. Robbins and the Future of Constitutional Property Rights:

Yesterday's Supreme Court decision in Wilkie v. Robbins is deeply troubling because it suggests that, at least in some cases, there is no remedy for property owners seeking to protect themselves against government retaliation for the exercise of their constitutional property rights. The Court refused to give the plaintiff a damages remedy for the government's violation of his constitutional rights even though it admitted that there was no other adequate remedy available.

As I explained in this post, the facts of the case are as follows: The Bureau of Land Management (BLM) allegedly launched an extensive campaign of harrassment against Wyoming rancher Robbins because of his refusal to grant the BLM an easement across his property without compensation.

Under the Fifth Amendment, government coercion to force Robbins to give up the easement without compensation is a clear violation of the Takings Clause. Because the case is at the "summary judgment" stage (before going to trial), the court must assess all factual claims in the light most favorable to Robbins, because the only issue currently in question is whether the BLM should win even if Robbins' factual claims are accurate.

Nonetheless, the Supreme Court majority refused to grant Robbins a damages remedy against the BLM. This is not in and of itself especially troubling. There are other ways to prevent violations of constitutional rights. For example, the Court majority noted that Robbins could file tort suits against the BLM agents. The problem is that the majority itself admits that those other remedies are inadequate in this case:

Robbins’s argument for a [damage] remedy that looks at the course of dealing as a whole, not simply as so many individual incidents, has the force of the metaphor Robbins invokes, “death by a thousand cuts...” It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals,lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.

Yet the majority still denies Robbins his request for a damage remedy. This violates one of the most basic principles of constitutional law: the idea that for every constitutional right there must be an adequate remedy. As the Court put it in an obscure little case called Marbury v. Madison:

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

The Wilkie majority violated this principle because of a fear that allowing "action[s] for damages to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations."

Justice Ginsburg devastates this argument in her powerful dissent. As she points out, most other government regulations affecting property do not in fact have an impermissible retaliatory motive of the sort Robbins alleged. Moreover, the majority's parade of horribles has not occurred in the case of actions against state governments, despite the fact that damage remedies have long been available for unconstitutional retaliatory action against property rights by state officials.

I would add two points to Ginsburg's analysis. First, under current Supreme Court doctrine, a regulation does not violate the Takings Clause merely because it "affect[s] property interests." In order to qualify as a taking, the action must involve physical occupation of the property by government agents (what the BLM sought to achieve in this case), or the elimination of virtually all of the property's economic value through government regulatory action (see Lucas v. South Carolina Coastal Council). Most other regulations are not takings even if they substantially impair property values. Thus, if Robbins had won this case, government officials need only fear damage suits in cases where they try to punish property owners for refusing to let them physically occupy their property or totally destroy its economic value.

Second, even if the majority's parade of horribles had some real validity, that still isn't enough to justify the Court's decision. By the Court's logic, citizens should be denied remedies for the violation of their constitutional rights any time setting up a cause of action for a remedy would burden the government "too much." However, the whole point of making the Constitution the supreme law of the land is to ensure that adherence to the Constitution trumps ordinary policy considerations, including considerations of cost. Protecting constitutional rights against violation is by definition a higher legal priority than making it more convenient for the government to operate its regulatory schemes.

If protecting a constitutional right really is too burdensome for the government, the proper solution is a constitutional amendment curtailing the right in question - not a judicial decision refusing to protect the right because the Court believes that doing so would inconvenience the government too much.

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David French, Formerly of the Foundation for Individual Rights in Education (FIRE), and now with the Alliance Defense Fund,

comments at National Review Online on Morse v. Frederick (paragraph break added):

The Court basically holds that schools can restrict speech about drugs because drugs are really harmful and really illegal.

All of this is no doubt true, but here's the rub: Virtually all restrictive speech policies (including over-broad anti-harassment rules or anti-bullying policies that are often used to shut down religious speech on political or sexual issues) are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations. All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics.

Advocating illegal activity? Administrators justify censoring tee-shirts or other forms of speech by reference to state anti-discrimination statutes, anti-bullying regulations, and hate crimes laws all the time. What about impairing the cognitive or psychological development of young people? If you don't think schools can't trot out literally hundreds of psychiatrists who would argue that moral disapproval impairs the development of young people engaged in various forms of sexual activity, then I have a particularly nice bridge I'd like to sell you. It's big and spans the East River.

At its base, this opinion dramatically expands the scope of state authority over the speech of school children. Tie the speech in question to any form of "advocacy of illegal behavior," and the student will face long odds, even if his or her speech was non-disruptive, not school-sponsored, and not profane.

If the speech contradicts a message that state or federal officials require schools to advance, then the odds grow even longer. If the school caps it off by trotting out some mental health care specialists who talk about the "profound harm" to delicate young minds or the risk of violence caused by the dissenting speech, then you might as well start drafting your appeal.

And what does this all have to do with universities, you ask? In every single free speech case I've ever argued, the university's first line of defense is the high school speech standard. When high school student rights shrink, universities grow bolder. In fact, I would be surprised if the "Bong Hits" case is not raised in at least two pending Alliance Defense Fund university speech cases. We shall see if the courts will continue to distinguish between secondary school and universities -- especially in the face of serious institutional pressure to blur the differences.

I'm not sure how much of a risk there is of slippage from K-12 student speech to university student speech; courts have generally drawn a pretty firm line between the two. But I wouldn't say there's no risk, especially given that parts of Justice Thomas's concurring opinion (on which I hope to have more in the coming days) would support giving public university administrators a free hand just as Justice Thomas would support giving K-12 school administrators a free hand. Justice Thomas is just one vote, and I expect that there would in any event be at least five votes for upholding university speech codes and the like -- but I can't say that I'm entirely positive.

I do think, as I've suggested in an earlier post that there is a good deal of risk of slippage from pro-drug speech to other kinds of speech by K-12 students.

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Tuesday, June 26, 2007

Judge Cassell Testifies Against Mandatories: Today one of the smartest District Court judges in the country, Paul G. Cassell, testified before the House Judiciary Committee against the use of mandatory minimum punishments. His written testimony is here.
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Thoughts About Orin's Thoughts on Morse v. Frederick:

I much appreciate Orin's response to my Morse v. Frederick post. Here is what strikes me as the heart of his claim, responding to point 2 of my post:

[Under Alito's approach, t]he speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic....

Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

The trouble, it seems to me, is that under Justice Alito's test as Orin (quite plausibly) reads it, the rule is not that the speech is unprotected if "a plausible interpretation" of the speech is "break [the rule] just for the thrill of opposing authority." Rather, the speech is unprotected only if this is the only plausible interpretation — if the speech "can't reasonably be read as commenting about a political or social topic."

So under Orin's reading, "BONG HiTS 4 JESUS" should be protected so long as it can reasonably be read as commenting about whether marijuana use is good (a "social topic") or whether marijuana criminalization is good (a "political ... topic"). And it seems to me that it can be so reasonably read (even if it can reasonably be read as just a prank).

It's true that sometimes if you urge someone to break the rules, or praise conduct that breaks the rules, that can't reasonably be read as an implicit argument that the rules are bad. "Give your classmates wedgies" is probably not a protest against battery law, or an assertion that Nietzschean supermen shouldn't be bound by such law — perhaps one can say that it must either be a joke or a call to violate a rule without any commentary on the rule's soundness (though I'm not completely positive even about that). I take it this, though, that this is largely because there's no reasonable debate about whether wedgies are good, or should be allowed at school. Everyone agrees that battery should be against the rules; praise of such battery is thus unlikely to be an endorsement of the battery, or a claim that the anti-battery rules are bad.

But it seems to me that "[take] bong hits," "bong hits [are a good thing]," and "[we take] bong hits" — the three reasonable interpretations of the sign set forth by the majority, which Justice Alito joined and didn't try to limit on this score — aren't within this category. There is a lot of disagreement about whether marijuana use is good, and about whether marijuana law is bad. It seems to me that these three interpretations of the slogan (all treated as reasonable interpretations by the majority) can therefore be read as commenting on the soundness and wisdom of marijuana use, and of marijuana law. It thus seems to me that we can't say the poster "can't reasonably be read as commenting about a political or social topic." So if Justice Alito's test is read as Orin suggests, the test would indeed be internally consistent — but it would be inconsistent with Justice Alito's conclusion that the speech here is unprotected.

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Property Rights' Unlikely Champion in Wilkie v. Robbins:

Yesterday, in Wilkie v. Robbins, the Supreme Court held, 7-2, that a landowner cannot maintain a private cause of action for damages against federal government employees who engage in a campaign of "harassment and intimidation aimed at extracting an easement across public property." The dissent maintained that the Court majority failed to safeguard the "bedrock constitutional right" protected by the takings clause of the Fifth Amendment, which provides that private property cannot be taken for public use without just compensation. If government agents may retaliate against a private landowner who does nothing more than assert his constitutionally protected property rights, and face no legal consequence, property rights will be less secure.

The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking.
Perhaps the most interesting thing about this passage is that it was authored by Justice Ruth Bader Ginsburg, and joined by Justice Stevens. Both were in the Court's majority in Kelo v. New London, and both have voted fairly consistently against the Fifth Amendment takings claims over the past decade. Yet in Wilkie v. Robbins, Justices Ginsburg and Stevens were most sympathetic to the claims of the aggrieved property owner.

See here for Ilya's and my prior posts on the Wilkie case.

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Terrorism Policy and Predictions of How the Supreme Court May Rule: Paul Mirengoff makes an interesting point in response to the Post's story yesterday about internal Bush Administration debates on what legal policies to adopt relating to terrorism:
In a few cases, the result was positions that strike me as indefensible, such as the decision to detain Hamdi (an American) for more than two years without a hearing or a lawyer. In other cases, though, "pushing the envelope" consisted of refusing to change a policy based on well-founded predictions that Justice Kennedy, the Court's swing vote, would reject the administration's position. This seems justifiable. The system may be set up to confer Kennedy with ultimate decision-making power on terrorism-related legal issues. But until Kennedy actually speaks, it's appropriate for the administration to take whatever reasonable positions it thinks will best protect the country. A position is not unreasonable merely because Justice Kennedy might well disagree with it.
  I agree with Paul that if an Administration thinks that it needs to take a step to protect the country, and that step appears legal based on existing precedents, it should not rule out the measure because it thinks a future Supreme Court might change the law and take a different course.

  At the same time, the passage in the Post story doesn't suggest to me that the issue in the debates over terrorism was really about national security in the short-term sense. Instead, as occasional co-blogger Stuart Benjamin noted here a long time ago, the debates were mostly about national security in the long-term sense. That is, those wanting to take the strong Executive positions did so to help future Executives to deal with future threats over the next few decades.

  If that's right, then the way the Supreme Court might vote in the short term really does become an important question. Go too far and you trigger a backlash. Lose the court's trust and you're in much worse shape that you would have been with a more moderate position. I gather that's why the lawyers with a deep knowledge of the Supreme Court (Ted Olson, Brad Berenson, Brett Kavanaugh, etc.) were counseling caution. Presumably they figured that the likely choice was between precedents giving a thumbs up to moderate steps and precedents slapping down broader ones.
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Warshak and Fourth Amendment Standards for Orders to Compel: In this post on Warshak v. United States, I want to address a critical question that the court addressed only briefly: If A hands a package to B, and the government wants to get the package from B, what legal standard does it need to satisfy to compel the package from B? More specifically, if the government uses a subpoena or other similar order to compel a third-party record-holder to disclose records, and a person who owns the records has a reasonable expectation of privacy in their contents, what threshold does the government need to follow to compel the records to be disclosed? Reasonableness? Probable cause? Something else?

  This is a fascinating and extremely important issue for which there is remarkably little helpful precedent (for a bunch of reasons I won't go into), so this was a very important issue for the Warshak court to address. As I explained in an earlier post, here's what the Court concluded:
Category #1: When the government is seeking evidence with a subpoena and no third party has a reasonable expectation of privacy in the information, the Fourth Amendment standard is the traditional reasonableness standard.

Category #2: When the government is seeking evidence with a subpoena and a third party has a reasonable expectation of privacy in the information but is not given prior notice, then the Fourth Amendment requires probable cause.

Category #3: When the government is seeking evidence with a subpoena and a third party has a reasonable expectation of privacy in the information but is given prior notice allowing them to challenge the subpoena, then the Fourth Amendment standard drops back down to traditional reasonableness. In other words, the Fourth Amendment requires probable cause or notice, but the presence of notice drops the required legal threshold down to reasonableness.
  In this post, I want to explain which of the categories here seem correct and which seem pretty dubious. Here's the bottom line: Category #1 is well-established, Category #2 is a definite possibility, although there are certainly unmentioned precedents that point the other way, and the line between Category #2 and #3 seems to be essentially made up by the Warshak court. And if you're a civil libertarian, it's a line that results in really low privacy protection if the government gives notice.


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Student Speech After Morse v. Frederick: Just to respond to Eugene's very thoughtful post below about Justice Alito's concurring opinion in Morse v. Frederick, I personally didn't find the line Alito drew to be particularly difficult or illogical. It may be wrong, but I don't think it's difficult or illogical. As Eugene notes, Alito wrote that he joined the majority opinion with the following understanding:
(a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use.
As I read this passage, Alito's view is that public schools can restrict speech so long as a) "a reasonable observer would interpret [the speech] as advocating illegal drug use" and b) the relevant speech cannot "plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use."

  Under this approach, there are a range of different statements that student speech can try to make, as well as a range of different interpretations that school administrators can make of the student speech based on the context. To determine whether the speech is protected, the court should first inquire if "a reasonable observer would interpret [the speech] as advocating illegal drug use"; if the answer is yes, the next question is whether the speech could be "plausibly . . . interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use." If the second answer is "yes," then the speech is protected; if the second answer is "no," it is not. The result is a narrow type of student speech that school administrators can ban: in a nutshell, speech reasonably read as encouraging the use of illegal drugs that doesn't seem to have any other message.

  Eugene suggests that the line between the two categories isn't coherent, but I disagree. As Eugene notes, speech can both advocate illegal drug use and comment on a social or political topic. But I read Alito's part (b) to account for that and deem the speech protected (or at least to say that nothing in Morse permits it to be banned, which I assume means by default that it is protected). The speech is only unprotected if it advocates illegal drug use and can't reasonably be read as commenting about a political or social topic. Thus, student speech like "homosexuality is an abomination" would be protected because it makes a comment on a political topic. At least that's how I read the opinion.

  Eugene next suggests that urging someone to violate the law is implicitly speech about a political topic. If you urge someone to break the rules, you must implicitly be arguing that the rule is bad. That makes some sense in theory, but it's not how I recollect high school. Back in high school, student opposition to school rules was partly about rebellion for the sake of rebellion. If school administrators announced a rule, a subset of students wanted to break it just for the thrill of opposing authority. That's what press reports suggest this case was all about; unfurling the banner was "a prank [designed] to cause a stir" rather than speech designed to communicate a particular set of views about a political or social topic. It's not the only way to interpret the banner in this case, but I think it's a plausible interpretation.

  To be clear, I'm not sure I agree with the line Alito drew. I personally find the idea that pro-drug student speech poses special dangers to student physical safety to be pretty odd. What's the connection? Is the idea that students will hear pro-drug speech, start doing drugs, become addicts, and then become violent in class? Alito doesn't say; he points to the majority's argument, but that majority's analogous point seemed to be about the harms of drugs among schoolchildren generally rather than the threat of physical violence. And as Eugene rightly notes, we don't know what other categories might also pose these "special dangers." But while I'm not sure I agree with Alito's line, I think the line is likely to be a relatively coherent one in practice.
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The Morse v. Frederick Dissent:

A couple of observations:

1. Justice Stevens' dissent, joined by Justices Souter and Ginsburg, seems to endorse some restriction on pro-illegal-drug-use speech (and not just speech that falls in the narrow generally unprotected category of speech intended to and likely to incite imminent illegal conduct). It is "willing to assume that ... the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly 'advocates the use of substances that are illegal to minors,'" and treats it as an implication of the "unremarkable proposition" "that deterring drug use by schoolchildren is a valid and terribly important interest." "[T]he First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students." And while Justice Stevens says that he is only "assum[ing] for the sake of argument" that "Given that the relationship between schools and students 'is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,' it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting," the tenor of all these statements strikes me as supporting, if grudgingly, restrictions on express advocacy of illegal drug use.

So it seems that everyone on the Court, with the possible exception of Justice Breyer, is willing to endorse some viewpoint-based restriction on some pro-drug speech (even outside the narrow and long-established incitement exception). Moreover, everyone with the exception of Justice Thomas and the possible exception of Justice Breyer, is willing to endorse what seems like a viewpoint-based First Amendment exception to do it. (Justice Thomas would say that pretty much all speech by K-12 students is unprotected from the government acting as educator, a viewpoint-neutral exception that allows a wide range of viewpoint-based speech restrictions.) The question is chiefly about the difference in the scope of the exception.

2. On the facts, Justice Stevens' argument that Frederick's speech wasn't advocacy of drug use strikes me as quite weak. Here is what he argues (one paragraph break added):

To the extent the Court independently finds that "BONG HiTS 4 JESUS" [can most reasonably be interpreted as] the advocacy of illegal drug use ... that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that. Ante, at 7 (positing that the banner might mean, alternatively, "'[Take] bong hits,'" "'bong hits [are a good thing],'" or "'[we take] bong hits'"). Frederick's credible and uncontradicted explanation for the message -- he just wanted to get on television -- is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. FN7 But most importantly, it takes real imagination to read a "cryptic" message (the Court's characterization, not mine) with a slanting drug reference as an incitement to drug use.

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.

But it seems to me clear that the most plausible interpretation of Frederick's speech is precisely that marijuana use is good, and should be engaged in. The alternative meanings mentioned by the majority, which Justice Stevens points to, are quite consistent with that; even just "[we take] bong hits" has as its "most probable" interpretation that "[we take] bong hits [and that's good]." Ask high school students or recent high school graduates whom you know how they would likely interpret the banner. I asked three this morning, and all of them treated the statement as being generally pro-drug.

Doubtless the statement is ambiguous, as many short slogans are. For instance, it's not clear whether the "4 Jesus" really tries to bring in a religious meaning. But if you're looking for one "most plausible interpretation," "drug use is good" is surely part of it.

As to Justice Stevens' claim that the message is too "dumb" to be effective advocacy, I'm not sure: The theory even with most express advocacy is that the messages persuade when aggregated together, not that they will move many minds standing alone, and even jocular and "dumb" support of marijuana use may in the aggregate lead students to think of marijuana use as cool and fun. But more importantly, even dumb advocacy is still advocacy.

3. Perhaps, though, Justice Stevens should be arguing not that the speech isn't advocacy, but that it's not express enough to be advocacy -- that only messages that expressly say "take bong hits," "use marijuana," "people should use marijuana," and the like should be proscribable. "BONG HiTs 4 JESUS" definitely doesn't seem express about anything much; and limiting the exception to express advocacy would indeed limit the exception's scope.

At the same time, First Amendment law almost never draws distinction between express messages and pretty clear implicit messages, partly because any such distinction would either be very easy for speakers to evade, or attempts to prevent such evasion would eat away at whatever limitations the "express[ness]" requirement imposes. (Consider the related debates about express advocacy of election or defeat of a candidate in campaign finance law -- a debate that I unfortunately don't have the time to get into this weak, despite the fascinating-looking FEC v. Wisconsin Right to Life, Inc. decision.) And Justice Stevens doesn't at all confront these issues, as it seems to me an effective argument for limiting the exception to truly express advocacy should.

4. Finally, note that the debate about whether First Amendment tests should focus on (1) whether speech could reasonably be interpreted as advocating illegal drug use, making false statements, making threats, and the like (the majority's view, at least in this case) or on (2) whether speech "can most reasonably be interpreted" as advocating illegal drug use, making false statements, making threats, and the like is a very interesting one, and should get more attention than it has historically gotten. Courts must somehow determine what a statement "means," but there are plenty of statements that have multiple plausible meanings, each of which is reasonable and none of which is the one "most reasonable" one.

I've tried to find good discussions of this in the libel context, where the factual problem of ambiguity often comes up. As I understand it, the dominant view is that the jury must find the reasonable meaning. A small minority of states (perhaps only Illinois, I think) take the view that so long as a reasonable meaning is innocent rather than defamatory, the statement must be found nondefamatory. But in practice, unless I'm mistaken, the question is often the opposite, which is whether a reasonable person could interpret the statement as defamatory (even if other reasonable people would take the opposite view). I'd love to hear from people who have researched the subject more thoroughly than I have, and have some good cases -- likely libel cases -- that discuss this.

Nonetheless, it seems to me that Justice Stevens erred in deciding that "BONG HiTs 4 JESUS" would "most reasonably be interpreted" as simply being a "nonsense message"; instead, the most reasonable interpretation is a message of vague support for marijuana use, the very interpretation that the majority adopted using its focus on what constitutes a reasonable meaning. Thus, this interesting debate (whether we look to the reasonable meaning, which is to say the most reasonable meaning, or a reasonable meaning, which is to say some meaning that at least a substantial minority would accept) isn't fully implicated here.

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What Did Morse v. Frederick Do to the Free Speech Rights of Students Enrolled in K-12 Schools?

A few thoughts about the holding of Morse v. Frederick, in which the Court held that a public K-12 school could punish a student for putting up a seemingly pro-marijuana-use sign — a "BONG HiTS 4 JESUS" at a school-sanctioned event (even such an event that's not on school property).

1. Justice Alito, joined by Justice Kennedy, joined the majority opinion but only

on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use.

Justice Alito's opinion, as the narrowest grounds offered by any of the Justices whose votes were necessary for the majority, thus seems to offer the controlling legal rule.

2. But what does this purported distinction between the speech in clause (a) (restrictable) and the speech in clause (b) (not restrictable) really mean? The trouble is that "speech that a reasonable observer would interpret as advocating illegal drug use" often also "can plausibly be interpreted as commenting on any political or social issue."

Consider, for instance, "legalize marijuana because marijuana is safe and fun." While this doesn't expressly advocate illegal drug use, a reasonable observer might well interpret it as so advocating: After all, the statement does say that marijuana is fun, and fun and safe things are often worth doing. Yet the statement that marijuana is fun is an important part of the comment on the political or social issue. While one might well support legalizing marijuana even if it weren't fun, the claim that marijuana is fun — and thus, implicitly, that people are losing a good deal of pleasure because of the marijuana ban — is an important argument against the ban.

Now consider "marijuana is fun." This doesn't expressly say "legalize marijuana" or even "the panic over marijuana abuse is overrated." But in context, it pretty clearly "can plausibly be interpreted as commenting on [a] political or social issue." It may implicitly take a stand on what the law should be; I'd wager that most people who hear "marijuana is fun" would interpret this as at least partly an endorsement of marijuana decriminalization (in the absence of qualifiers such as "but many fun things should be banned for the greater good"). And surely it comments on a "political or social issue" in the sense of saying something that's pretty directly relevant to the issue — whether marijuana is fun is surely relevant to whether it should be criminalized, though it is hardly dispositive.

Finally, consider "BONG HiTS 4 JESUS," which the majority said (and on this Justice Alito squarely agreed with the majority), "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug,'" or "as celebrating drug use — 'bong hits [are a good thing],'" two messages that the majority saw as constitutionally indistinguishable. It seems to me that these messages "can plausibly be interpreted as commenting on any political or social issue": They implicitly suggest that drug laws are a bad idea ("violate law X" often tends to suggest that, especially as to laws that are quite controversial), which is a comment on a political issue. And they suggest that drug use is a good idea, which is a comment on a social issue.

3. So I think that this distinction is logically unsound, even in this very case. And this unsoundness also makes it hard to see how the distinction will play out in the future. For instance, say that a school argues in favor of restricting anti-gay speech on the grounds that it poses a threat to gay students' "physical safety" by contributing to a culture in which gay-bashing is encouraged and gays are made to feel insecure. (Justice Alito's opinion stresses that the new exception for pro-drug speech is justified by the fact that such speech jeopardizes students' "physical safety," presumably through its persuasive effects.) And say a student wears a T-shirt saying "straight pride," or "homosexuality is an abomination."

Is this a "comment[] on any political or social issue," and thus immune from constitutional punishment, or is this something that a reasonable observer can interpret as advocating (or at least celebrating) hostility towards gays, hatred towards gays, personal insults of gays, or even attacks on gays? I would think it clearly was plausibly interpretable as "commenting on a political or social issue," but "advocating illegal drug use" is also so interpretable. "[C]an plausibly be interpreted as commenting on a political or social issue" doesn't mean what it literally seems to mean. So what then does it mean, and how would it play out as to anti-gay speech?

4. Justice Alito also tries to limit his opinion in another way:

I do not read the opinion to mean that there are necessarily any grounds for such regulation [of K-12 speech] that are not already recognized in the holdings of this Court. In addition to Tinker [which permits the regulation of student speech that threatens a concrete and "substantial disruption"], the decision in the present case allows the restriction of speech advocating illegal drug use; Bethel School Dist. No. 403 v. Fraser permits the regulation of speech that is delivered in a lewd or vulgar manner as part of a middle school program; and Hazelwood School Dist. v. Kuhlmeier allows a school to regulate what is in essence the school's own speech, that is, articles that appear in a publication that is an official school organ. I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.

So this is a narrow exception, which shouldn't be read beyond "advocating illegal drug use." But then Justice Alito stresses that the reason for this exception is that "Speech advocating illegal drug use poses a threat to student safety, and "illegal drug use presents a grave and in many ways unique threat to the physical safety of students."

What, doesn't illegal alcohol use by minors also pose a serious threat to student safety? How about just reckless driving by minors? Unprotected sex by minors, which can lead to sexually transmitted diseases — including deadly ones — as well as pregnancy, which threatens many girls' futures even if not their lives?

And, returning to the example from item 3, condemnation of certain sexual orientations, which can help foster a climate in which physical attacks on students of those orientations are permissible — or perhaps can even lead to depression that could lead to physical harms, including suicide? Perhaps one can argue that the latter is a lesser problem than the others; but that's far from obvious, it seems to me. The logic of Justice Alito's opinion thus suggests that there would indeed be grounds for regulation of at least some K-12 speech that goes beyond Tinker, Fraser, Kuhlmeier, and "speech advocating illegal drug use."

True, the majority opinion and Justice Alito's opinion don't necessarily offer grounds for regulation of any speech other than the speech Justice Alito mentions in the block quote. Very little necessarily follows from one opinion. But surely the logic of the "threat to student safety" argument substantially strengthens the case for regulating other kinds of speech, no? If so, what exactly does Justice Alito's assertion give us.

5. Finally, if Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected, many of my objections above would no longer be apt. There might be other objections — for instance, how would one tell whether harsh condemnation of homosexuality could reasonably be seen as endorsing attacks on homosexuals, or at least illegal discrimination based on sexual orientation? But maybe on balance these objections would be surmountable, and perhaps we should tolerate far broader restrictions of K-12 speech than we do now. (I hope to blog a little more about Justice Thomas's opinion, which frankly endorses very broad toleration of such restrictions.) And at least we wouldn't have what strikes me as a false distinction between "speech that a reasonable observer would interpret as advocating illegal drug use" and speech that can plausibly be interpreted as commenting on any political or social issue."

The trouble is that the controlling opinion wasn't framed this way. And the way it was framed strikes me as quite unsound, and hard to interpret sensibly.

UPDATE: Just to make clear, paragraph 5 refers to the hypothetical in which "Justice Alito's opinion had simply said that speech that could reasonably be seen advocating or endorsing illegal conduct is unprotected" -- simply, without any qualifiers such as that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use."

If one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue other than by advocating or endorsing illegal conduct," that isn't consistent with the rest of Justice Alito's opinion, which seems to limit the new exception to advocacy of illegal drug use (and perhaps a few other especially dangerous forms of illegal conduct). If one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue other than by advocating or endorsing illegal drug use," that just strikes me as an odd interpretation of Justice Alito's language.

But in any event, either of these interpretations would still pose the problems I identified in 2: The same speech may both plausibly be interpreted as commenting on a political or social issue other than by advocating or endorsing illegal conduct and plausibly be interpreted as advocating or endorsing illegal conduct. Consider "marijuana is safe and fun," which can both plausibly be interpreted as opposing the ban on marijuana and as endorsing drug use.

Finally, say one interprets Justice Alito's proviso (b) as saying that the Court's opinion "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue except when the speech can also plausibly be interpreted as advocating or endorsing illegal drug use" -- which is to say that speech is stripped of protection if one plausible interpretation is advocacy or endorsement of illegal drug use, even if another plausible interpretation is advocacy of changing the law.

That still seems like an odd interpretation of the text, but in any event it ends up being quite strikingly broad: After all, "decriminalize marijuana, because marijuana is safe and fun" may well be interpreted as advocating or endorsing marijuana use as well as arguing for a change in the law. Yet that presumably would be "speech on issues such as 'the wisdom of the war on drugs'" -- one important argument for ending the war on marijuana -- and thus the very sort of speech that Justice Alito seeks to assure us remains protected. So it seems to me that whatever qualifiers one tries to read into the controlling opinion, the conceptual internal contradiction at the heart of that opinion still remains.

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Cheney and the Supreme Court Nominations Process: The Washington Post has an interesting story on Vice President Cheney's role in the selection of Supreme Court nominees here.

Related Posts (on one page):

  1. Following Cheney's Tracks through Environmental Policy:
  2. Cheney and the Supreme Court Nominations Process:
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Monday, June 25, 2007

Still Batting 1.000:

I’m on a family trip this week, and I’ll blog only rarely (though I hope to be able to put up a few posts about Morse v. Frederick, the K-12 student speech case).

In the meantime, though, I thought I'd pass along my friend Jim Ho's observation that, after 20 5-4 cases this Term, Justice Kennedy is still batting 1.000 -- he's been in the majority in all 20.

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More on the Vice Presidency and the Executive Branch: Recent revelations that the Office of the Vice President is not in the Executive Branch brought me to read the government's brief filed in Cheney v. United States District Court, the 2004 Supreme Court case on whether a civil suit could force disclosure of meetings held by the Vice-President to advise the President on energy policy.

  The brief, filed on behalf of the Vice President, argued:
Any attempt by Congress to regulate the President's ability to obtain advice from officials in the Executive Branch would unconstitutionally interfere with powers expressly reserved to the President by the Constitution. See, e.g., U.S. Const. Art. II, § 2, Cl. 1 ("The President *** may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.) . . .

During the Constitutional Convention of 1787, the Framers considered several times whether to provide the President with some form of advisory council that included representatives of the Legislature or Judiciary. See James Madison, Notes of Debates in the Federal Convention of 1787, at 487-488, 509-510, 569, 598-602 (W.W. Norton & Co. 1966) (debates of Aug. 20, 22, and 31 and Sept. 7, 1787). Each such proposal was rejected. The Framers chose instead to enshrine in Article II the President's power to seek advice from those under his direct control. As Alexander Hamilton subsequently explained, the unity of the Executive would be destroyed if the President were "subject[ed] in whole or in part to the controul and co-operation of others, in the capacity of counsellors to him.” The Federalist, No. 70, at 472-473 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961). The Opinion Clause thus explicitly confirms the President's authority to gather information and opinions from his subordinates. The history of that provision, the structure of Article II, and the obvious constraints of the separation of powers make it clear that the President's authority to receive opinions from Executive officers is not subject to interference from or control by the other Branches.
Seems like a strange point to make if the OVP isn't in the Executive branch.
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The Performance of Federal Indigent Defense Counsel

There is a new and very detailed study of this topic, here is the abstract:

The right to an equal and fair trial regardless of wealth is a hallmark of American jurisprudence. To ensure this right, the government pays attorneys to represent financially needy clients. In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.

Here is a non-gated version of the paper. By the same author, here is a working paper on whether the certainty of arrest reduces domestic violence.

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Little Secret About the Supreme Court Term: I hate to admit this, given that many of you are visiting us for the latest exciting news as we near the end of the Supreme Court term, but my own take is that this Term is proving to be notably quiet.

  Compared to past Terms, it seems like hardly anything has happened. Maybe it's just that the Court's docket was particularly low (especially in my area, criminal procedure, where almost nothing happened). And maybe the race-in-the-schools case will be a blockbuster when it comes out. But with just a few decisions left, it seems like the Term is notable for the fact that the docket was small and most of the decisions were pretty narrow.

  I'm making a relative point, of course. What the Supreme Court does is often important, even if it's less important than past years. And you can always take the camera and zoom in to make the little things seem big. But the major story of the Term seems to be not what happened this Term, but rather what might happen in the future if trends and clues continue. Which itself help makes the point: it's been a pretty quiet Term.
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Balkin on the Court's Conservatives: Commenting on today's Supreme Court decisions, Jack Balkin writes:
George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases. That may be because they are new on the Court and not yet ready to overrule cases left and right (mostly to the right). Or it may be because they are genuinely "conservative" in the sense of preferring slow and steady incrementalism to the large changes in doctrine that Scalia and Thomas prefer. In any case, Roberts and Alito do not seem to be "in the mold" of Scalia and Thomas, although, to be sure, they seem to be just as conservative, and perhaps that is what Bush really meant.
  I think it's clearly right that Roberts and Alito are cut from a very different cloth than Scalia and Thomas. Here's what I predicted a year ago, which I think has looked pretty accurate so far:
My speculation is that Roberts and Alito will end up harkening back to an older kind of judicial conservatism — a conservatism more like Justice Harlan or Justice Frankfurter than Scalia or Bork. If you’ll allow me to paint with a very broad brush, Justices Scalia and Thomas have a radical element to their approach to constitutional law. They see the Court as having deviated from the true Constitution, and to varying degrees want the Court to return to first principles. You can see this when either Thomas or Scalia writes an opinion suggesting a significant change in Supreme Court doctrine, such as Scalia’s majority opinion in Crawford v. Washington or Thomas’s concurrence in United States v. Lopez. A careful reader senses a certain excitement, a freshness, in the tone of the opinion.

My guess is that Alito and Roberts will end up being quite different. My sense is that both Justices are basically at peace with the Warren Court. To be sure, they wouldn’t have joined the Warren Court’s more controversial opinions, and they may be willing to soften some hard edges of those opinions over time. And they’ll probably end up voting with Scalia and Thomas in a lot of cases.

At the same time, my guess is that Roberts and Alito are conservatives more in an institutional sense. If Scalia and Thomas are first-principles conservatives, Alito and Roberts are more second-principles conservatives. There’s more Bickel and less Bork; more of a focus on craft within the four corners of existing precedents and principles than a return to first principles.
  As for what Bush meant when he promised to appoint Justices in the mold of Scalia and Thomas, my recollection is that he never actually made that promise. Bush did say he would nominate "strict constructionists," and he said that he liked Justice Scalia a lot and seems to like Thomas, too. But my recollection is that he never actually promised to nominate someone "in their mold," whatever that would mean.
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What To Do With Flast v. Cohen? In today's decision in Hein v. Freedom from Religion Foundation, a decision on taxpayer standing to challenge potential violations of the Establishment Clause, the Justices come up with three answers to this question: 1) Read it narrowly (Alito, Roberts, Kennedy), 2) Overrule it (Scalia, Thomas), 3) Read it broadly (Souter, Stevens, Ginsburg, Breyer). Interesting opinions.
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"Bong Hits 4 Jesus" Case: The Supreme Court handed down 5 new cases today as the Term is coming soon to its end; among today's decisions was Morse v. Frederick, a.k.a. the "Bong Hits 4 Jesus" case.

   Chief Justice Roberts wrote the 5-Justice majority opinion, which held that schools can punish student speech reasonably believed to promote illegal drug use (which in the majority's view the "Bong Hits 4 Jesus" banner did).

  There were a slew of concurrences in the case, suggesting that the Court was much more splintered than the majority opinion indicates. Justice Alito concurred, joined by Kennedy, stating that he joined the majority opinion on the understanding that the holding was really very very narrow. According to Alito, the case is really just about speech that promotes illegal drug use in schools without a plausible claim to making an argument relating to a social or political issue (whether about the war on drugs or something else).

  On the other side of the narrow/broad divide, Justice Thomas wrote a separate concurring opinion endorsing Justice Black's dissenting opinion in Tinker v. Des Moines to the effect that public school students don't have First Amendment rights at school at all. (Pretty impressive that Roberts kept a majority together given the broad range of views among the five Justices that joined it.)

  Justice Breyer concurred in the judgment: he would have resolved the case on qualified immunity grounds without reaching the merits. Justice Stevens dissented, joined by Justices Souter and Ginsburg.
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Part Two of Excellent Series on Cheney: The Washington Post has posted Part II of its series of Vice President Cheney. This one covers Cheney's role in defining Administration legal policies relating to terrorism. A must-read: highly recommended. Part I was here.
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Sunday, June 24, 2007

Need Background on E-mail Practices: I have more blogging planned this week on Warshak v. United States, and I need some technical help before I touch on some of the issues. Here's what I need to know: If you're a system administrator overseeing a computer network that provides e-mail, how easy it is to access a user's e-mail and how often are you likely to do it in the regular course of business?

  Ideally, I'd like to know the answer for a big commercial services like Yahoo or AOL as well as for smaller providers like private companies that provide company-based e-mail. Also, I'd be very interested in knowing how much the answer has changed over time. Practices can vary, of course, as the Warshak court notes: but I wonder, is there a widely shared practice that is pretty stable over time? And if so, what is it?

  The reason I''m asking is that the Warshak court seemed to believe that the contents of user e-mails normally were sealed away from system administrators, and that accessing e-mail required a type of breaking in; the Court analogizes sysadmin reading of e-mail to postal employees opening sealed letters or bank employees opening safety deposit boxes. This belief seems to be an important part of the court's Fourth Amendment holding (although clearly it was not the only part or reason). I'm wondering, was that an accurate characterization?

  If you happen to be well-informed on these questions and you want to share your thoughts, send me an e-mail at orinkerr (at) yahoo.com. Thanks!

UPDATE: I've received a bunch of responses already -- thanks to everyone for sending them in. Probably no need for more responses, although of course I'm happy to read whatever you want to send me. I'll have more stuff up on this later in the week, too.
Wash Post Profiles Influential Legislator: Today's Washington Post kicks off a series on Senate President Dick Cheney, who apparently has also exercised some influence in recent years within the Executive Branch. The first installment is here.

  UPDATE: The Washington Post article really is a must-read, although on reading it closely I realize that the title of my post is inaccurate. According to the Post article, Cheney's counsel believes that the Vice-Presidency is neither in the executive branch nor in the legisltive branch. Last I checked, the federal government only had three branches, so by process of elimination the Office of the Vice President must be in the judicial branch.
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Sunday Song Lyric: A few weeks back I tried to find a good immigration-related song lyric, and proposed "Illegal Alien" by Genesis. Since then, I've picked up The White Stripes new album, Icky Thump. Immigration is still in the news, and the album's title track is a great song with topically appropriate lyrics, including the following:
White Americans, what?
Nothing better to do?
Why don't you kick yourself out
You're an immigrant too.

Who's using who?
What should we do?
Well, you can't be a pimp
And a prostitute too

Icky thump
Handcuffed to a bunk
Robbed blind
Looked around
And there was nobody else

Left alone
I hit myself with a stone
Went home and learned how
To clean up after myself.
The video is available on the band's website, and YouTube has several live performances of the song, including this one from Conan O'Brien. The duo is touring for the next several months, and I highly recommend catching a show.
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