The Volokh Conspiracy

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related violence). However, it’s pretty clear under long-established doctrine that the Commerce power can be used to address “social problems that do not involve markets.” E.g., Caminetti v. United States, 242 U.S. 470 (1917) (Congress can use the interstate commerce power to criminalize interstate travel by people intending to engage in non-commercial extra-marital sex); Champion v. Ames, 188 U.S. 321 (1903) (“What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?”). Personally, I thought that Chief Justice Fuller’s dissent in Champion had the better argument, but Champion and its progeny are well-established precedents, so proposed limiting principle number two does not work, unless we overrule a century of precedent.

Besides that, #2 does not work for the same reason that #1 does not work. If Congress forced food producers to sell products to some consumers at far below cost, then Congress could (for economic, not social/moral motives) force other consumers to buy overpriced food, so that the producers do not go bankrupt. Imagine that instead of the Food Stamp program (general tax revenue given to 1/6 of the U.S. population to help them buy food), Congress forced grocery stores to sell food to poor people at far below cost. And instead of raising taxes in order to give money to the grocery stores to make up for their losses on the coerced sales, Congress instead forced other consumers to spend thousands of dollars on food from those same stores, which would be sold to those consumers at far above its free market price.

If there’s a limiting principle, the only one seems to be that in order to mandate the purchase of a product, Congress must also inflict some other harm on the producers of the product, which the coerced purchases will ameliorate.

3. “Collective action failures and interstate externalities impede the ability of the states to guarantee access to health insurance, prevent adverse selection, and prevent cost shifting by acting on their own. Insurers operate in multiple states and have fled from states that guarantee access to states that do not.” This is really a policy argument for Obamacare. Hypothesizing that it’s a good policy argument, it’s not a limiting principle. That the advocates of Obamacare think that the policy arguments for their mandate is better than the policy arguments for other mandates does not provide courts with a limiting principle of law.

Moreover, the policy argument is wrong. It’s true that some insurance companies stop operating in states where the law forces them to sell insurance to legislatively-favored purchasers at far below the actuarial cost of the insurance, with the  legislature failing to compensate the companies for the enormous resulting losses. If you make it difficult for companies to operate profitably in your state, then they will eventually stop operating in your state. It’s not a collective action problem; it’s just a problem of several states enacting laws that prevent companies from covering their costs. Any state with guaranteed issue and other price controls can solve the problem immediately by simply using tax revenues pay compensation for the subsidy which the state law forces the insurance companies to provide to certain consumers.

Obamacare is a particularly weak case in which to argue that the federal government is riding the rescue of the states to solve a collective action problem. For the first time in American history, a majority of the States are suing to ask that a federal law be declared unconstitutional. These states are taking collective action to stop the federal government from imposing a problem on them.

4. The Tax Power. “[T]he minimum coverage provision respects the limits on the tax power. The difference between a tax and a penalty is the difference between the minimum coverage provision and a required payment of say, $10,000 that has a scienter requirement and increases with each month that an individual remains uninsured. Unlike the minimum coverage provision, such an exaction would be so coercive that it would raise little or no revenue. It would thus be beyond the scope of the tax power.”

Let’s put aside the fact that, however ingenious the progressive professoriate’s  tax arguments have been, the chances that the individual mandate is going to be upheld under the tax power appear to be at most 1% greater than the chance the Buddy Roemer will be the next President of the United States.

Presuming that Siegel’s tax justification for the individual mandate is valid, it is an anti-limiting principle. Congress can indeed mandate eating hamburgers, smoking, not smoking, not eating hamburgers, or anything else Congress wants to mandate, as long as Congress sets the “tax” at level that will raise a moderate amount of revenue, does not include a scienter requirement, and does not make the “tax” increase each month that the individual refuses to do what Congress mandates.

5. Liberty. “The minimum coverage provision does not violate any individual rights, including bodily integrity and substantive due process more generally. These rights would be violated by a mandate to eat broccoli or exercise a certain amount.” Pointing to the existence of the Bill of Rights is not an example of a limiting principle for an enumerated federal power. The Constitution does not say that Congress may do whatever it wishes as long as the Bill of Rights protections of Liberty are not violated. Ordering New York State to take title to low-level radioactive waste generated within the state (New York v. United States) did not violate any person’s substantive due process rights, but the order was nonetheless unconstitutional because it exceeded Congress’s powers. The federal Gun-Free School Zones Act did not, as applied, violate the Second Amendment rights of Alfonso Lopez, who was carrying the gun to deliver it to a criminal gang. Yet the Act still exceeded Congress’s commerce power. A limiting principle must limit the exercise of the power itself, not merely point out that the Bill of Rights protects some islands of Liberty which the infinitely vast sea of federal power might not cover.

Finally, I certainly agree with Professor Siegel that the Fifth Amendment’s liberty guarantee (and its 14th Amendment analogue for the states) should be interpreted to say that no American government can order people to consume a certain amount of healthy food, or to exercise. But there is no major case that is on point for this. The argument for a new unenumerated right “not to eat the minimum quantity of nutritious food which government scientists have  determined is essential for good health” is something that would have to be built almost entirely by extrapolation from cases that have nothing to do with food. I hope that courts would accept the argument; but if the political culture ever moved far enough so that a nutrition mandate could pass a legislature, I’m not as certain as Prof. Siegel that courts would overturn the mandate. The odds of winning a case against a nutrition mandate will be better if the judges who decide that case have not grown up in a nation where a federal health control mandate is the law of the land.

In non-mandate news, the Supreme Court issued two merits opinions today, including Zivotofsky v. Clinton, a challenge to the State Department’s refusal to follow a federal statute directing the federal government to recognize Jerusalem as a part of Israel specifically by allowing American citizens born in Jerusalem to have “Israel” listed as their birthplace.  The U.S. Court of Appeals for the D.C. Circuit had held that Zivotofsky’s claim presented a non-justiciable political question as it involved a foreign policy question implicating separation of powers questions best resolved by the political branches.  in Zivotofsky, the Supreme Court disagreed.  Chief Justice Roberts wrote the opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.  Justices Alito and Sotomayor wrote opinions concurring in the judgment and Justice Breyer dissented.

This afternoon the Supreme Court asked for supplemental briefing and announced it would hear additional oral arguments next term in Kiobel v. Royal Dutch Petroleum, in which the Court is considering whether foreign nationals may file suit against corporations for alleged human rights abuses in U.S. courts.  Kiobel was just argued last week.  Lyle Denniston has details on the Court’s announcement at SCOTUSBlog.

Is the Supreme Court becoming detached from the practice of law?  A new study by the University of Tennessee’s Benjamin Barton, “An Empirical Study of Supreme Court Justice Pre-Appointment Experience,” suggests it might be.  It finds that Supreme Court justices today have a far narrower set of pre-Court experience than in the past.  Here is the abstract:

This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this is insalubrious.

The first proposition is an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical peers, the study gathered a massive database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are startling and telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. The article argues that the change is regretful for multiple normative reasons, including the way these experiences lead to legal complexity in Court decisions, the lack of litigation or trial experience on the Court, and the lack of what virtue ethics calls “practical wisdom.”

Even though Prof. Barton uses the word “insalubrious” in the abstract, the paper is still worth a look.

UCLA law professor Adam Winkler has an op ed arguing that the Republicans should nominate Clarence Thomas for president. Back in 2010, I explained why this is a bad idea, in response to a similar proposal by Kashmir Hill and David Lat. My reasons apply with equal force to Winkler’s argument:

I see a few positives in a Thomas candidacy. As Hill and Lat point out, Thomas is smart, eloquent, and has significant libertarian leanings. A black Republican presidential nominee might also have great symbolic value, even despite (or perhaps because of) Obama’s historic breakthrough.

Nonetheless, there are very strong arguments against a Thomas run that easily outweigh the positives. First, it would surely reopen the whole issue of Anita Hill’s sexual harassment charges. Whether you think that Hill was telling the truth or not, there is no doubt that the press and public opinion would focus on this issue. It would quickly become an immense distraction, and greatly reduce Thomas’ chances of winning….

The second argument against a Thomas run is even more important: he would have to resign from the Supreme Court and Barack Obama would get to pick his successor. I have been very critical of Thomas’ positions on several issues…. On balance, however, he has been one of the most libertarian and originalist justices, and I would be sorry to lose him.

Right now, the Court has a narrow 5-4 conservative majority. If Obama replaces Thomas with a liberal, the balance would flip….

There are other aspects of Thomas’ record and personality that might impede his candidacy. For example, he does not seem to be a person comfortable with the constant glare of media attention that surrounds a presidential campaign. Quotations from his many forceful Supreme Court opinions would probably provide good fodder for clever attack ads (especially if taken out of context).

In sum, a Thomas presidential candidacy strikes me as a bad idea. The only people likely to benefit are liberals who would welcome the opportunity to replace Thomas with an Obama nominee, and anyone who would enjoy relitigating the Thomas-Hill controversy.

Winkler suggests that the GOP could avoid having Thomas replaced by an Obama nominee if they filibuster in the Senate until the election is over, arguing that Thomas’ replacement should be picked by whoever wins the election. Even if the Republicans could sustain such a filibuster, however, this argument ignores the possibility that Thomas would lose to Obama. Given an improving economy and Thomas’ weaknesses as a candidate, such an outcome is quite likely.

My bet is that both GOP leaders and Thomas himself understand the above. Therefore neither will be tempted to push for a Thomas presidential run, despite understandable dissatisfaction with the current set of GOP candidates.

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.