The Volokh Conspiracy

SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions.  The Court was unanimous in the judgment.  Chief Justice Roberts wrote the opinion for the Court.  Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!).  I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan.  More background on the case can be found here.

Also, FWIW, the Court today also issued another 8-1 opinion in Perry v. New Hampshire.

The Supreme Court issued four opinions in argued cases today.  Interestingly, all four cases were decided 8-1 (though some featured concurrences or separate opinions).  Justice Ginsburg was the lone dissenter in two of the cases (Minneci v. Pollard and Compu-Credit Corp. v. Greenwood).  In the other two cases the lone dissenters were Justice Scalia (Gonzales v. Thaler) and Justice Thomas (Smith v. Cain).  SCOTUSBlog has more details on the opinions here.

From the Wall Street Journal:

The Ninth Circuit Court of Appeals is often a source of national amusement, but if one of its recent decisions on the Clean Water Act is allowed to stand, it will wreak havoc on the timber industry and damage other agricultural management as well. Today the Supreme Court is likely to decide whether to hear the appeal on a case that could reinterpret a longstanding classification in environmental law.

In Georgia Pacific v. Northwest Environmental Defense Center, the question concerns whether rural roads used for hauling timber should be subject to the same stringent environmental permitting process as major industrial sites and municipal systems.

An environmental group claimed that water runoff from logging roads was getting into fish-bearing streams. The District Court said there was no case but in its ever-willful way the liberal Ninth Circuit overturned, ruling that the roads should fall under so-called “point source” standards, which require special permits from the EPA.

The stricter classification is a perennial on the wish list of environmentalists because it would introduce an army of lawyers and specialists every time a new logging road was built. Under the roads’ historical Clean Water Act classification as “non-point source,” storm-water runoff on the roads is regulated by the states, which develop their own requirements and restrictions on road use. The stricter category would delay the process as the permits themselves become a new locus for additional environmental litigation.

The U.S. Forest Service says that if the ruling stands, it would have to obtain more than 400,000 permits, working with 46 states, a process that could take 10 years. And that’s the green goal: to create enough delay and bureaucracy that timber harvesting will cease to be profitable.

According to Oregon Democratic Senator Ron Wyden, the Ninth Circuit’s radical interpretation “would shut down forestry on private, state and tribal lands” in the states where it applies….

Seems like a pretty high-probability grant to me; I’m certainly no environmental law expert, but the case looks like a big deal (it drew a 25-state-AG amicus brief, which I think is rather rare at the cert stage), and SCOTUSblog includes it on its “petitions to watch” list. So if there’s a grant, remember that you heard it here first (or maybe second). If there’s a denial, then — prediction? What prediction? Disclosure: My colleague Tim Bishop at Mayer Brown is on the case, though I didn’t work on it personally.

UPDATE (Mon., Dec. 12): No grant or deny yet — rather, the Court called for the Solicitor General to convey the views of the federal government on the case.

Eric Segall, a self-described “liberal constitutional law professor” who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation.

Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.

I explained why I don’t think Justice Kagan needs to recuse here, though I believe it’s a closer case than some have acknowledged.

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

I did not know that until this morning. For the answer, see here.

Former federal judge and Attorney General Michael Mukasey argues against the recusal of any SUpreme Court justices in the in the case challenging the constitutionality of the Patient Protection and Affordable Care Act.  Ideological partisans have argued that one or more justices on the other side of the ideological divide are sufficiently conflicted to require recusal.  The Left has targeted Thomas (and to a lesser extent, Scalia) for alleged spousal conflicts and (choice of dinner companions), while the Right has targeted Kagan due to her work as Solicitor General.  To each, Mukasey responds: ”upon even a cursory examination of the facts it is clear that neither justice should step aside.”

Of the specific standards, only two—one as to each justice—could conceivably be relevant. The one that potentially relates to Justice Kagan requires disqualification “[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” “Proceeding” is defined to include all stages of the relevant litigation.

In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.

The one provision that could apply to Justice Thomas requires recusal if the spouse of the Justice is known by him “to have an interest that could be substantially affected by the outcome of the proceeding.” Under the applicable law, the “interest that could be substantially affected” does not include a rooting interest, which is the only interest hypothesized even by the justice’s critics.

In my view, the complaints against Justices Thomas and Scalia are frivolous. By the standards traditionally applied by the Supreme Court, there is no question recusal is not required here. Justice Ginsburg did not recuse in tax cases, nor in cases in which the NOW Legal Defense Fund participated, and these presented closer cases than the allegations made here. (Ditto calls for Judge Stephen Reinhardt to recuse from the Prop. 8 litigation in California due to his wife’s work with the ACLU.) And if attending ideologically charged dinners is a problem, some of the liberal justices would have problems here too. Perhaps a more stringent standard should be applied, but the bar for recusal should be quite high in the Supreme Court, as a forced recusal is (for all practical purposes) a vote to affirm the judgment below. This is why I think the bar for recusal should remain high.  We all know the justices have ideological priors — indeed, that’s one reason they were chosen in the first place — and, as Kevin Drum noted, excessive focus on spousal career choices could have pernicious effects.

The complaint against Justice Kagan is more superficially plausible, as she worked as Solicitor General while the PPACA was in Congress and the Justice Department began developing its defense strategy.  Under normal circumstances, the former SG would need to recuse in a case of this sort.  Yet by all accounts, Kagan walled herself from participating in any meetings or strategy discussions about the PPACA, even before she was tapped for the Court. Such discussions, had they occurred, would be grounds for recusal, unquestionably. But Justice Kagan claims to have stayed out, and I see no reason to question her veracity on this point.  That she cheered the law’s passage to Lawrence Tribe does not require her recusal either. Even assuming she loves the law, her personal political views do not require her to recuse any more than Justice Scalia’s personal or religious views about abortion require his recusal in cases questioning the constitutionality of abortion laws.

An added note: While I believe Kagan has been forthcoming, I do not think the same can be said for the Justice Department. Documents concerning Kagan’s non-role were withheld from the Senate Judiciary Committee and only later released in response to a FOIA request. Moreover, as I understand it, some documents are still being withheld under the FOIA exemption covering privileged or deliberative documents.  This exemption would seem to apply only if Kagan had actually been involved with the case. This cannot help but raise questions, but is not, in itself, a cause for recusal. The Justice Department is notoriously stingy when it comes to the disclosure of documents of this sort, yet the failure to be more forthcoming only fuels the call for Kagan to step aside.  Again, however, I believe Kagan should be taken at her word.  She has been quite diligent about recusing in cases in which she was involved, and our system relies upon Supreme Court justices to police themselves in the first instance.

UPDATE: The Washington Post likewise believes Justice Thomas presents an “easier call” while Justice Kagan’s situation is “more delicate and difficult.”  And, although the WaPo muffs the relevant dates (Kagan was not walled off until later in March, not “early March 2010″ as the editorial claims), reaches the same conclusion: Neither is required to recuse.  As the Post concludes:

Justices are not blank slates. They come to the court with personal views on a range of policy and political issues. They have a duty to decide cases, absent an incurable conflict; this is especially true at the Supreme Court, where, unlike lower courts, no other judge may fill the void created by recusal. But they must set aside personal preferences when deciding matters of law. We trust that Justices Thomas and Kagan will do that.

Among this morning’s cert grants was Christopher v. SmithKline Beecham Corp., in which the Court will have to determine whether pharmaceutical sales representatives are subject to the “outside sales” exemption from the Fair Labor Standards Act’s overtime requirements.  At first glance, Christopher may seem like a rather pedestrian labor law case.  Don’t be fooled. Christopher has the potential to be an important administrative law case concerning the extent to which courts should defer to agency interpretations of their own regulations.

The underlying labor law question — whether drug companies must pay pharmaceutical sales representatives overtime — divided the lower courts. The U.S. Court of Appeals for the Second Circuit, in In re Novartis Wage & Hour Litigation, answered “yes,” deferring to the Department of Labor’s interpretation of its own regulations implementing the FLSA.  In Christopher, however, the U.S. Court of Appeals for the Ninth Circuit reached the opposite result, in the process rejecting the Labor Department’s interpretation of its own regulations offered in an amicus brief.  The two courts divided not only on the overtime question, but also the scope of Auer deference to subsequent agency interpretations of ambiguous regulations.  The Second Circuit found the Labor Department’s interpretation “controlling,” while the Ninth Circuit concluded that (under Gonzales v. Oregon) no such deference is due when an agency’s regulation does little more than “parrot” the underlying statutory language.

The split over the applicability of Auer deference was expressly noted in SmithKline’s response to the petition for certiorari.  Indeed, this split was one of the reasons that SmithKline supported the cert petition.  SmithKline’s brief stressed that the uncritical application of Auer deference can empower agencies to circumvent the normal process for revising regulatory requirements and evade the limitations on Chevron deference imposed by Christensen and Mead.  It further noted the serious questions about Auer deference Justice Scalia raised last term in Talk America v. Michigan Bell. In all likelihood, these concerns contributed to the Court’s decision to grant cert.

What the Court will do with Auer deference is anyone’s guess.  The Court may be content to clarify the limitations on the doctrine hinted at in Gonzales. On the other hand, the Court could take the opportunity to pare back the doctrine to bring it into line with other recent changes in administrative law doctrine, the post-Mead reformulation of Chevron in particular.  In any event, for those interested in administrative law, this will definitely be a case worth watching.

David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia.  In recent years he has led the charge for more strict enforcement of the Sixth Amendment‘s confrontation clause.  This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results.  Justice Scalia’s commitment to his understanding of the Constitution’s original meaning is not all that’s at work here, however.  His commitment to formalism, and the imposition of bright-line rules, is even greater.  Indeed, the best way to understand the current Court’s division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations.

Because of the press of business at my day job, I’ve had less than usual worth saying recently.  In fact, I haven’t posted in months.

But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters.  An amicus brief I did for the Cato Institute, Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, and TechFreedom in the upcoming FCC v. Fox Television Stations was mentioned in the Hollywood Reporter yesterday in its Hollywood Docket feature that included a story on Kim Kardashian. 

The brief made paragraphs 1 and 2 of the article; Kim wasn’t mentioned until paragraph 6, and yet somehow she is the one who got the photo that ran in the article.  Harrumph.

The Supreme Court has granted certiorari in several of the health care cases, granting the Florida’s, NFIB’s and the federal government’s petitions, including consideration of the Tax Injunction Act issue, and granting extended argument time.  I suspect SCOTUSBlog will have a full report shortly.

NOTE: Here is SCOTUSBlog’s health care litigation page, and here is the ACA Litigation blog which is also a useful resource on the litigation.

Today was a beautiful fall day in Washington, DC, and after the Jones argument I shot this 10-second video of what it’s like on the front steps of the Supreme Court after a 10 am oral argument. Note that the people in line are waiting to get a brief glimpse of the 11am argument, which based on the transcript looks like would have been more than enough. The Court police officers shoo away folks who want to stand on the steps of the Court, but they let people hang out on the plaza below. In any event, readers who live in DC or who have been to the Supreme Court know what this is like, but I figured I would post it for those readers who have never paid a visit.

(For the record, a voice calling my name is not generally part of the experience.)

From the Nixon Tapes, as quoted by Kevin J. McMahon, Nixon’s Court (2011):

Nixon: Incidentally, what is Rehnquist? I suppose he’s a damn Protestant?
Attorney General John Mitchell: I’m sure of that. He’s just as WASPish as WASPish can be.
Nixon: Yeah, well, that’s too damn bad. Tell him to change his religion.
Mitchell: All right, I’ll get him baptized this afternoon.
Nixon: Well, get him baptized and castrated, no, they don’t do that, I mean they circumcise — no, that’s the Jews. Well anyway, whatever he is, get him changed.

CNN reports that in a recent speech Justice Elena Kagan acknowledged that she has gone practice shooting and hunting with Justice Scalia — and that she likes it.  From the story:

She recalled paying a courtesy call on Sen. James Risch (R-Idaho) shortly after her nomination to the court by President Obama in May 2010. Risch asked her about gun rights, and remarked she may not realize how important the issue was to some Americans, especially in his home state.

She admitted never having owned or fired a gun before. “But I told the senator if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia.”

And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.

“You’re Jewish,” deadpanned Rabbi Mitchell Wohlberg.

“Yeah, but it turns out, it’s kind of fun,” said Kagan, laughing.

From today’s Order List released by the Supreme Court:

10-11054 MURPHY, CHARLES M. V. KOLLAR-KOTELLY, JUDGE, USDC DC
Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

I suspect this case has an interesting backstory, even if there’s not much to the petitioner’s legal claims.

In case you haven’t read enough Supreme Court OT 2011 term previews, here’s the one I wrote for NRO: “Supremely Consequential.”

Robert Barnes profiles Justice Elena Kagan in today’s Washington Post.  Here’s a taste:

A first term provides a limited perspective, but as the court opens its new session early next month, Kagan’s performance last year offered clear signals about a woman who came to the bench as something of a mystery.

The first justice in more than 40 years who had never been a judge, Kagan established herself quickly as a forceful and insightful questioner on a court filled with strong personalities.

While Kagan’s writings as an academic did not suggest a strong legal philosophy, her opinions and dissents from the bench have shown a conversational, confident writer, at times as sarcastic and cutting as a veteran.

And liberals who worried that she would not shore up the court’s left flank have so far found their concerns unfounded. The man she replaced, Justice John Paul Stevens, said he can think of only a couple of cases where she voted differently than he would have.

Justice Kagan’s quick emergence is even more notable given the high number of cases in which she had to recuse herself this past term.

[Link Fixed]

Given all the attention paid to Rick Perry’s “record tally” of executions as Texas Governor, I am surprised the Supreme Court’s decision last week to stay the execution of Duane Edward Buck has not received more attention.  From the Houston Chronicle:

Buck was sentenced to die for the July 1995 shooting deaths of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but the woman recovered and later became an advocate for saving his life.

The legal fight for Buck’s life centered on a 2000 assertion by then-Texas Attorney General John Cornyn that Buck’s case was among six capital trials that might have been tainted by racial testimony from psychologist Walter Quijano.

The other five killers all received new federal court-ordered punishment hearings in which they again were sentenced to death. But Buck, whose case still was at the state level at the time of Cornyn’s pronouncement, never had his sentencing reconsidered.

Given the stay, I would think that a grant of certiorari is likely.

The Yale Law Journal‘s new “Summary Judgment” online series features a set of essays on the Supreme Court’s decision in American Electric Power v. Connecticut, in which the Court held unanimously that suits against utilities alleging their emissions of greenhouse gases contribute to the “public nuisance” of global warming under federal common law were displaced by the Clean Air Act.  Contributors to the online symposium include Hari Osofsky, Daniel Farber, James May, Maxine Burkett, Michael Gerrard, and yours truly. My contribution, “A Tale of Two Cases” (PDF), discusses how the outcome in AEP was predetermined by the Court’s prior holding in Massachusetts v. EPA that greenhouse gases were pollutants subject to regulation under the Clean Air Act.  The essay is based on a longer article forthcoming in the Cato Supreme Court Review that I will discuss at the Cato Constitution Day event on Thursday.

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

CQ‘s Kenneth Jost assesses “Chief Justice Roberts’ Ill-Informed Attack on Legal Scholarship” on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June.

“Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

As I told Jost for his post, I think there is something to Roberts’ critique. Much legal scholarship has little relevance to the bar or the bench. At the same time, it would be a mistake to believe that practical utility is the only measure of legal scholarship. Empirical analyses of judicial behavior may not help judges resolve cases, but they can certainly aide in our understanding of the legal system. Much scholarship also has value for its own sake. [UPDATE: Even if some scholarship has intrinsic value, that does not necessarily mean it should be financed by law student tuition.]

Somewhat ironically, as Jost notes, this past term featured several opinions that relied heavily upon legal scholarship for their analysis, including Wal-Mart v. Dukes which extensively cited the work of the late Richard Nagareda.

Somewhat coincidentally, two legal scholars have a draft empirical study of the Supreme Court’s use of legal scholarship over the past 61 years. It finds that the Supreme Court actually cites legal scholarship quite frequently — in approximately one third of its cases. As Jost notes, eight of the current Justices cited legal scholarship at least once in their opinions this past term. The one exception: Chief Justice Roberts.

My co-authored op-ed on Justice Breyer’s jurisprudence has stirred a bit of controversy.

The basic point of the op-ed is that, as political scientist Ken Kersch puts it in a great scholarly review of Breyer’s book “Active Liberty”, Breyer’s intellectual roots are less in the sort of modern liberalism that animated the likes of William Brennan, and more “in pre–New Deal, early twentieth century progressivism, an outlook with an animating faith in government by expert, acting as stand-ins for the (uninformed) people at large.”

This does not, of course, mean that Breyer would vote the same way in particular cases in 2011 as a Progressive would have in 1911. Breyer, like everyone else, has been influenced by the civil rights movement, the women’s movement, and other massive social changes that have taken place in the last one hundred years. But it does mean that he is prone to making the same category of error pre-New Deal jurists made, in giving too strong a presumption to legislative outcomes supported by a consensus of elite experts at the expense of individual rights.

My co-author and I cited Breyer’s recent First Amendment dissent in Sorrell, as demonstrating how Breyer gives much shorter shrift to First Amendment rights than did Brennan and his cohorts. In another case this past term, Breyer got his liberal colleagues to sign on to an opinion stating that the First Amendment primarily protects the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.” This harkens back to the Progressive view of free speech, not the more liberal view of Brennan et al.

It probably would have been worth adding that Breyer has long had overall the most pro-government record in First Amendment rights of his contemporaries.

Breyer’s views are also on display in other contexts, including the Second Amendment, Commerce Clause, and affirmative action cases, but of course there is a general liberal consensus regarding the “right” answer in those cases, albeit not necessarily on Breyer’s reasoning.

But how about Korematsu? When I’ve blogged about Lochner v. New York as the most reviled, anti-canonical case of the twentieth century, several commentators have insisted that Korematsu is much more loathed than Lochner, that no jurist could be taken seriously if he supports the outcome in Korematsu.

That’s interesting, because Breyer discusses Korematsu at length in a recent book, and he never does get around to saying that the Court should have deemed Fred Korematsu’s detention illegal. Rather, he argues that the majority was too deferential to the executive, the dissents were “unworkable”, and they should have met somewhere in the middle–but not somewhere that would have entitled Korematsu to an immediate hearing, much less release.* Rather, “ideally,” the Court should have found a pragmatic solution somewhere in between “burdensome, case by case review, and no review at all.” (I’ll leave it to another time to discuss why Breyer nevertheless voted the way he did in Boumediene).

Obviously, my views are not on the modern liberal/progressive left, so I’m not going to be particularly happy with any given liberal Justice. But I much prefer left-leaning judges who have a strong sense of the importance of individual rights and the dangers of excessive government authority than ones who do not. Breyer, while certainly not wholly indifferent to civil liberties, seems closer to the latter category than any other “liberal” Justice of the last fifty or so years.

UPDATE: *Clarification/correction: Perhaps in deference to Korematsu’s anti-canonical status, Breyer does offhandedly state on page 191 that Murphy, dissenting, was right in the Korematsu case itself, even though his opinion was unworkable. So Breyer does deem Korematsu’s detention illegal, at least by 1944 when Korematsu was decided. But it’s also clear that Korematsu would not, under Breyer’s view, have been entitled to a speedy, individualized hearing upon detention, much less immediate release. Since Breyer only endorses Murphy’s preferred result in a single short sentence and doesn’t elaborate further, it’s not clear on what grounds the Court Breyer thinks the Court could have ordered Korematsu’s release while still appropriately deferring to the executive.

FURTHER UPDATE: In our op-ed, we noted that in Sorrell,

Breyer didn’t simply defer to the legislature’s reasons for restricting speech–he made up his own! He included a twenty page appendix listing over one hundred studies discussing the impact of violent video games on minors. Notably, most of these studies were not considered by the California legislature when enacting the statute, nor were they presented in briefs submitted to the Supreme Court.

Relatedly, Linda Greenhouse writes:

the sheer size of this offering, consisting of contradictory articles neither cited to the court by the parties nor vouched for by the justice himself qualifies the Breyer dissent for the distinction of “most unusual judicial performance.”

At a recent Aspen Institute conference, Justice Breyer was asked whether Justice Thomas should recuse himself if and when the health care litigation reaches the Supreme Court. The Daily Beast reported on his response:

“This is a false issue,” Breyer said in response to an audience member who posed a hypothetical case loosely fitting Thomas’ situation. “As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be.” . . .

On Wednesday, Breyer suggested that this could be a very bad idea. Noting that federal judges in lower courts are bound by explicit guidelines that Supreme Court justices are not obliged to follow, Breyer said, “The Supreme Court is different in one respect. In every other court, if I decided in a close matter to recuse myself, that’s the easy decision. That’s one fewer case I have to decide, and besides, they’ll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result.”

Breyer went on, “My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?”

The more relevant comparison would be Justice Ginsburg. Her late husband was one of the most prominent tax attorneys in Washington, D.C. His clients certainly had an interest in the outcome of big taxes cases before the Court, but no one suggested Justice Ginsburg was required to recuse from tax cases on this basis.

Hat tip: UPI.

Now that the real business of October Term 2010 is over, I just wanted to say a few words in praise of the cert pool. No, not that cert pool. The certpool.com, a website run by Austin appellate lawyer Don Cruse that tracks the progress of petitions by federal courts of appeals and by state courts of last resort. It is an extremely helpful way of keeping a close eye on the Court’s docket.

The one shortcoming of the website is that its focus on appellate courts doesn’t cover all of the Supreme Court’s docket. Even apart from original actions (which, candidly, are hard for even hardcore Court buffs to get worked up about, although I guess I should speak for myself), every now and again, you get a case that comes straight from a three-judge district court. You won’t find those on certpool.com. But surely, that must only happen once in a blue moon.

Anyhoo, good work, Don.  Keep it up.