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Supreme Court

All articles with the "Supreme Court" tag.

Published: Wed, 17 Jan 2018 00:00:00 -0500

Last Build Date: Wed, 17 Jan 2018 19:37:40 -0500


Where Are the Supreme Court's Opinions?

Tue, 16 Jan 2018 09:49:00 -0500

Some Supreme Court watchers were hoping the justices might return from their winter break with a few opinions in decided cases. No such luck. This morning, when the Court convened for argument, it released orders from last week's conference, but no new opinions.

Thus far this term, the Supreme Court has issued only one opinion in an argued case, a brief unanimous opinion by Justice Ruth Bader Ginsburg in Hamer v. Neighborhood Housing Services of Chicago. While we don't ususally see a ton of opinions in the first half of a term, this is the slowest rate in a long, long time. According to data compiled by Adam Feldman at Empirical SCOTUS, the last time the Supreme Court did not issue a second opinion in an argued case until January was 1869.

To be fair, the Court has issued a few per curiam opinions in cases that did not receive oral argument. There are four listed on the Court's opinions page. In addition, there have been a few opinions related to orders as well. (These are usually dissents from denials of certorari and things like that.) It's also fair to note that the Court has quite a few weighty cases on its docket, and has been asked to intervene repeatedly in the "travel ban" cases. All this could be slowing things down. Nonetheless, it seems notable that the Court has yet to produce more opinions.

Does the Court's slow pace auger anything significant? Perhaps. One possibility is that the justices are unusually divided in an unusual number of cases, and this is slowing the pace of opinion issuance. Unanimous opinions are often quicker to produce than divided decisions. When the Court is divided, the justices may go back-and-forth responding to each other's drafts. It's also possible that the Court is having trouble producing majorities in an unusual number of cases, and the delay reflects ongoing negotiations over case resolutions. Or maybe the clerks have been binge-watching old sitcoms on Hulu.

Whatever the cause, the Court's slow pace means there will be some catching up to do -- and this means a particualrly busy spring for those of us who like to watch the Court.

How the Supreme Court Is Aiding and Abetting Occupational Licensing Abuse

Fri, 12 Jan 2018 09:45:00 -0500

(image) In 1955 the U.S. Supreme Court effectively told every federal judge in the country to uphold the vast majority of economic regulations that landed in their respective courtrooms.

"It is for the legislature, not the courts, to balance the advantages and disadvantages" of laws that regulate the economy, the Supreme Court declared in its opinion in Williamson v. Lee Optical of Oklahoma, Inc. "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." In other words, the Court said, tip the scales in favor of lawmakers when an economic regulation is challenged in court.

The result? Even the most preposterous, pointless, and even harmful regulation stands a good chance of prevailing in federal court.

Case in point: Yesterday the U.S. Court of Appeals for the 8th Circuit repeatedly cited Lee Optical in a decision affirming the constitutionality of Missouri's ludicrous requirement that African-style hair-braiders obtain a government license before they are legally permitted to charge customers for the harmless act of braiding hair. To get such a license, would-be hair braiders must spend tens of thousands of dollars in tuition on at least 1,500 hours of cosmetology school classes. None of those mandatory classes teach or test anything about African-style hair braiding.

In 2014, the hair braiders Ndioba Niang and Tameka Stigers, represented by the lawyers at the Institute for Justice, took the Missouri Board of Cosmetology to court. Niang and Stigers argued, correctly, that the state's absurd licensing scheme serves no legitimate health or safety purpose while at the same time preventing otherwise law-abiding citizens from earning a living in a perfectly safe occupation.

But none of that mattered to the 8th Circuit. "The State 'may enact a needless, wasteful requirement in many cases,' which may 'not be in every respect logically consistent with its aims,' but still be 'constitutional,'" the 8th Circuit ruled in Niang v. Carroll, quoting extensively from Lee Optical. "There may be advantages and disadvantages to a licensing requirement, '[b]ut it is for the legislature, not the courts, to balance' them." In the opinion of the 8th Circuit, the state's licensing requirements "do not violate the Fourteenth Amendment rights of the African-style hair braiders."

From the standpoint of constitutional originalism, that is pure bunk. The 14th Amendment, as originally understood by those who drafted and ratified it, does place substantive limits on state regulatory power and does recognize the right to earn a living as one of the privileges or immunities of U.S. citizenship that "no state…shall abridge." In the words of Republican Congressman John Bingham of Ohio, the principal author of Section One of the 14th Amendment, the Privileges or Immunities Clause protects "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

Missouri's licensing scheme for African-style hair braiders plainly violates this fundamental constitutional right and deserves to be invalidated for that reason. Unfortunately, thanks to the Supreme Court's deeply flawed ruling in Lee Optical, the 8th Circuit had a ready excuse for ignoring the 14th Amendment and rubber-stamping this nonsensical law.

New York City Unleashes Eminent Domain Abuse on Immigrant Dry Cleaners in East Harlem

Thu, 11 Jan 2018 14:55:00 -0500

Eminent domain abuse has reared its ugly head in East Harlem. As Ginger Adams Otis reports in the New York Daily News, city officials plan to seize a family-owned dry cleaning business and then hand the forcibly vacated land to a wealthy private developer. Damon Bae, whose parents opened the Fancy Cleaners business after immigrating to the United States from Korea in 1981, told the Daily News that "the city has offered my family about 30 cents on the dollar on the market value for what our three lots are worth—that's not enough to buy anything comparable in East Harlem today....The city's working so hard to meet the developer's timeline; meanwhile, we're trying to stay in business." According to city officials, Bae's property is "blighted," the condition of severe disrepair required to trigger a taking under state eminent domain law. Yet as Bae told the Daily News, "the only 'blight' was in the [city-owned] vacant lots the city allowed to sit empty" nearby. In other words, the local government created the very conditions that it is now using as a pretext for seizing the Bae family's property. Unfortunately for the Baes and others like them, the U.S. Supreme Court turned a blind eye to this sort of abuse in the 2005 case of Kelo v. City of New London. On the state level, New York's highest court—the Court of Appeals—ruled 6-1 in 2009 to let the state seize property on behalf of the real estate tycoon Bruce Ratner and his Atlantic Yards/Barclay's Center basketball stadium project in Brooklyn. In that case, state officials described the 22-acre project site as "blighted," thereby setting the stage for the bulldozers to clear away homes and businesses. What was the evidence of this alleged blight? The state's report cited such factors as "weeds," "graffiti," and "underutilization." Needless to say, pretty much any block in the city could be seized under those standards. What's worse, the court basically admitted that the whole thing was a sham. "It may be that the bar has now been set too low—that what will now pass as 'blight,' as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses," the majority said in Goldstein v. New York State Urban Development Corporation. "But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts." In his lone dissent, Judge Robert Smith rightly blasted his colleagues for abdicating their judicial duty. "The right not to have one's property taken for other than public use is a constitutional right like others," Smith wrote. "It is hard to imagine any court saying that a decision about whether an utterance is constitutionally protected speech, or whether a search was unreasonable, or whether a school district has been guilty of racial discrimination, is not primarily a judicial exercise." One year later, in Kaur v. New York State Urban Development Corporation, New York's high court cited its Goldstein ruling to support yet another shady eminent domain taking. This time the court ruled in favor of the "Manhattanville" project, a government scheme to seize a bunch of West Harlem homes and businesses in order to make room for a new research campus that Columbia University wanted to build. Despite significant evidence of cronyism and other misconduct, including the manufacturing of "blight" conditions by the school, the court upheld this land grab too. In New York City, sadly, eminent domain abuse has been given the green light to proceed. Related from Reason TV: "Billionaires vs. Brooklyn's Best Bar: Eminent Domain Abuse & the Atlantic Yards Project" src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">[...]

No, Trump Still Can't Outlaw Mocking Him

Thu, 11 Jan 2018 10:01:00 -0500


At the start of a Cabinet meeting yesterday, President Donald Trump reiterated his desire to "take a strong look at our country's libel laws," promising that "when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts." The remarks come on the heels of the president's threat of a libel suit against the author and publisher of the recent White House tell-all Fire and Fury.

But even with a friendly Congress at his back, the president would have a hard time making it easier to win a defamation or libel suit. That's because America's federal defamation and libel "laws" aren't really laws at all, in the sense of statutes and regulations that can be modified by congressional or executive action. They're Supreme Court precedents limiting what types of published statements can be judged libelous or defamatory.

Specifically, the Court's 1964 ruling in New York Times Co. v. Sullivan holds that false statements about public figures—specifically public officials—cannot be the basis for defamation or libel judgments unless they are "knowingly" or "recklessly" false.

This standard, somewhat misleadingly called "actual malice," makes it extremely difficult for a public figure to win a libel suit against a critical media outlet. It can be done, but the plaintiff has to prove the publication either knew that what it was printing was untrue and ran it anyway, or deliberately ignored obvious indicators that the story was false. Opinions, criticism, and even flat-out insults are categorically insufficient to satisfy the standard.

Because those standards come from the Supreme Court, there's no readily apparent way short of a constitutional amendment to broaden the range of published statements that can be punished as libel. Over time, of course, a president can reshape the judiciary by appointing new judges, but in a number of recent decisions the current Supreme Court has shown itself strongly disinclined to tinker with protective First Amendment precedents.

So what could Trump do to actually get what he wants? That's easy. Just replace half the current Supreme Court bench with justices he can be sure would reject a half-century's worth of free speech jurisprudence. Piece of cake.

Can the 'Automobile Exception' Run Over the Fourth Amendment?

Wed, 10 Jan 2018 15:30:00 -0500


The Supreme Court has long held that police don't need a warrant to search a motor vehicle if they have probable cause to think it contains evidence of a crime. But does the so-called "automobile exception" apply to a vehicle parked in a location that would ordinarily require a warrant to access?

In a strikingly broad ruling in 2015, the Supreme Court of Virginia said it did. Going beyond the nationwide rule that cars can be searched without a warrant—a doctrine based on the fact that their mobility makes it easier to move or destroy important evidence before a warrant is issued—the Virginia justices held in Collins v. Virginia that the automobile exception trumps even the Constitution's requirement that police must have a warrant to search a home.

The case was then appealed to the U.S. Supreme Court, which heard oral arguments yesterday. The outcome could have wide implications for Americans' Fourth Amendment rights.

The story began when a police officer, without a warrant or consent, walked up a private driveway and lifted a tarp off a motorcycle parked in a partially enclosed car-port connected to the back of a house. The officer was looking for a distinctive motorcycle whose rider had previously eluded him at high speed, but a check of the VIN number revealed that the bike was stolen. Having found this evidence, the officer arrested Ryan Collins, whose girlfriend lived in the home.

Collins wants to suppress the evidence, arguing that it was the fruit of an illegal search. If such searches are permitted, Collins' lawyers and a number of pro-privacy groups argue, the suspected presence of a vehicle could be used as a pretext for warrantless searches of nearly any location.

In yesterday's oral arguments, several justices seemed skeptical of Virginia's reasoning. As Chief Justice Roberts noted, the state's doctrine could theoretically authorize a warrantless search of Jay Leno's house based on the presence of cars inside. When Justice Sonia Sotomayor asked Acting Virginia Solicitor General Trevor Cox if he thought "the police can break into anything, go anywhere where they see the car, whether they [are] at that place legitimately or not," Cox answered "yes"; that prompted Justice Neil Gorsuch to interject sharply that such a rationale would suggest that the Court should overrule cases "going all the way back to the founding."

Appealing to that skepticism, Collins' attorney closed his arguments by cautioning the justices that "the automobile exception is literally knocking at the door of the house."

Exciting Developments in Supreme Court Appellate Jurisdiction

Mon, 08 Jan 2018 10:00:00 -0500

Two months ago I wrote about a set of cases pending at the Supreme Court from the Court of Appeals for the Armed Forces: Dalmazzi, Cox, & Ortiz v. United States. I argued that the Supreme Court lacked jurisdiction to hear an appeal directly from that so-called court (often called CAAF). Since then, some interesting things have happened.

First, that very same day, Professor Aditya Bamzai filed an amicus brief arguing that there was no appellate jurisdiction in the case. (Professor Bamzai was the first person I know of to spot this jurisdictional problem and alerted everybody to it in a previous case, which the Court eventually declined to review.)

Second, both the United States and the petitioner responded to this argument in their merits briefs, with the United States spending four pages arguing that Professor Bamzai was wrong because of previous precedents finding jurisdiction to review the decisions of territorial courts and state courts.

Third, last Friday, the Supreme Court took the very unusual step of giving Professor Bamzai ten minutes of time at oral argument to discuss the jurisdictional problem. It is unusual for a non-government amicus to be given any argument time, but this is particularly important since both of the parties disagree with Bamzai's argument against jurisdiction.

It is far too soon to get one's hopes up, but all of these things strike me as very promising developments. For reasons I will discuss in a draft paper, tentatively titled "Locating Non-Article III Adjudication" (or maybe "So-called Legislative Courts") I think that Professor Bamzai is correct. I will try to boil my reasons down to five quick points:

  • Article III, as correctly interpreted by Marbury v. Madison, says that Congress cannot add to the Supreme Court's "original jurisdiction," so the Court has jurisdiction over the CAAF only if this is an appeal.
  • For this to be an appeal, there must have been a certain kind of proceeding below. There are various formulations of what kind, but petitioners say the "touchstone is whether the underlying proceedings were 'judicial,'" which strikes me as basically right.
  • But the CAAF does not and cannot exercise judicial power because it is part of the executive branch, and not the judicial branch of the United States or any other government. Such an exercise of executive power may well be constitutional under longstanding precedent, but it is not judicial.
  • This does not mean that the Supreme Court can only hear cases from Article III courts -- of course not -- it can hear cases from territorial courts and state courts because those courts each exercise the judicial power of their respective government.
  • It also does not mean that Congress could not provide judicial review of the CAAF. It just means that the review would have to go first to the Federal Circuit or some other lower federal court, which is what Congress has done with other so-called legislative courts.

In any event, it will be interesting to see what happens next.

Blame the Supreme Court for Letting the Feds Target Legal State Pot

Thu, 04 Jan 2018 13:00:00 -0500

(image) Attorney General Jeff Sessions is reportedly planning to let federal prosecutors aggressively enforce federal anti-marijuana laws in states where pot has been legalized.

What gives the federal government the authority to target legal state pot? The answer is not the Constitution. This federal power grab is the product of two awful Supreme Court precedents.

In 1942 the federal government brought sanctions against an Ohio farmer named Roscoe Filburn. His crime? He grew twice the amount of wheat that he was permitted to grow under the terms of the Agricultural Adjustment Act of 1938. That sweeping federal law, ostensibly passed as part of Congress's power to regulate interstate commerce, sought to raise agricultural prices by limiting the supply of crops.

Filburn defended himself from the feds by pointing out that his extra wheat never once entered the stream of interstate commerce. In fact, he noted, that extra wheat never even left his Ohio farm. He used it to feed his livestock and to make flour for use in his family's kitchen.

But the Supreme Court ruled against him on Commerce Clause grounds anyway. Filburn's extra wheat may not have crossed state lines, the Court conceded in Wickard v. Filburn, but it still had a "substantial economic effect" on the interstate wheat market. As a result, Congress had every right to regulate Filburn and other farmers in this manner.

Six decades later, in the case of Gonzales v. Raich (2005), the Supreme Court applied and extended the Filburn precedent by upholding the federal ban on marijuana, even as applied to plants that were cultivated and consumed by patients for their own doctor-prescribed use in states where medical cannabis was perfectly legal. "The [Controlled Substances Act] is a valid exercise of federal power," declared the majority opinion of Justice John Paul Stevens, "even as applied to the troubling facts of this case."

Writing in dissent, Justice Clarence Thomas spelled out the disastrous impact of the Wickard/Raich doctrine in plain English: "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

Which brings us back to Jeff Sessions. If the attorney general follows through on his threats to unleash the federal government against legal state marijuana, make sure you reserve a portion of your outrage for the lousy SCOTUS decisions that empowered the feds in the first place.

Can Land Uninhabitable by an Endangered Species Nonetheless Be 'Critical Habitat' Under the Endangered Species Act?

Wed, 03 Jan 2018 21:22:00 -0500

The dusky gopher frog is an endangered species -- and the subject of substantial litigation. Once found throughout several southeastern states, the frog is only extant in parts of Mississippi, all located within a single county. The U.S. Fish & Wildlife Service would like to see the frog restored to more of its historic range, including parts of Louisiana, but that's easier said than done. The dusky gopher frog is apparently quite particular about the sorts of lands it will inhabit, and there's not much land within its historic range that contains all of the relevant features -- and therein lies a problem. In 2012, the FWS designated "critical habitat" for the dusky gopher frog, as is required under the Endangered Species Act (ESA). In doing so, the FWS identified lands inhabited by the frog -- largely areas with open-canopied pine forests and ephemeral ponds. More controversially, the FWS also designated parts of Louisiana -- an area called Unit 1 -- as "critical habitat" for the frog, even though it the land in question is not inhabited by any frogs, nor does it contain all of the features the FWS maintains are essential for the frog's survival. The FWS' critical habitat designation did not sit to well with those who own and wish to use the land in Unit 1. Listing land as critical habitat does not automatically impose obligations on private landowners under the ESA, but it can make it more difficult to obtain federal permits required under other statutes (such as a Section 404 permit to fill a wetland under the Clean Water Act) and reduce land values. By the FWS' own estimates, designating Unit 1 could cost the landowners as much as $34 million. As one might expect, the landowners sued. Among other things, the landowners argued that land that is neither habitable nor inhabited by an endangered species cannot be "essential" for the species' survival as the ESA requires. They further argued that the FWS failed to adequately consider the economic effects of including Unit 1 in the critical habitat designation. A federal district court in Louisiana rejected the landowners challenge to the critical habitat designation, as did a divided panel of the U.S. Court of Appeals for the Fifth Circuit. A petition for rehearing en banc was rejected 8-6, over a forceful dissent by Judge Edith Jones. Now the landowners are seeking Supreme Court review, and the Court is due to consider the petitions on Friday. Petitions for certiorari have been filed by the Pacific Legal Foundation (on behalf of several of the landowners) and Weyerhaeuser Co. Quite a few amici have filed in support of the petitions too. (See the brief listings here.) In many respects, Judge Jones' dissent from denial of rehearing en banc could be seen as petition for certiorari all its own. Judge Jones first argued that critical habitat must be habitable. No one disputes that the dusky gopher frog cannot inhabit Unit 1. The panel majority find that fact irrelevant, however, because looking only at the statute's definitional section, the ESA does not appear to require that a species actually be able to inhabit its "unoccupied critical habitat." They dismiss habitability as an "extra-textual limit" that cannot be found in either "the text of the ESA or the implementing regulations." . . . Read in context, however, the ESA makes clear that a species' critical habitat must be a subset of that species' habitat. The ESA's implementing regulations are consistent with this subset arrangement. Further, when Congress got around to clarifying critical-habitat regulation in 1978, the contemporary understanding of critical habitat, shared alike by the most fervent proponents and opponents of wildlife and habitat protection, was that it meant a part of the species' actual habitat. Judge Jones further argued that accepting the FWS interpretation of its own authority would, in practice, make it e[...]

The Fourth Amendment, the Exclusionary Rule, and Illegal Government Searches

Wed, 03 Jan 2018 09:50:00 -0500

Does the U.S. Constitution forbid the government from using illegally obtained evidence against a criminal suspect in court? The U.S. Supreme Court has ruled that it does. In the landmark 1914 case of Weeks v. United States, the Supreme Court announced the far-reaching legal doctrine that has come to be known as the exclusionary rule, which generally bars the use in court of such illegally obtained evidence. Weeks arose after federal officials kicked down the door of a criminal suspect, scoured his home without a search warrant, and discovered a number of incriminating documents, which were later used against him at his federal trial. The Supreme Court said such evidence must be tossed out. "If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense," the Court ruled, "the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution." Five decades later, in Mapp v. Ohio (1961), the Court extended the exclusionary rule to criminal trials held at the state level. "Presently, a federal prosecutor may make no use of evidence illegally seized," the Court observed, "but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same [Fourth] Amendment." The Mapp decision put an end to that federal-state discrepancy. "The fruits of an unconstitutional search," the Court declared, are now "inadmissible in both state and federal courts." Today the exclusionary rule stands as a centerpiece of Fourth Amendment law and as a treasured doctrine among civil libertarians. Yet the rule has its critics. Prominent among them is the respected liberal Yale University law professor Akhil Reed Amar, who has denounced the exclusionary rule as "despicable and dispensable." In Amar's view, the exclusionary rule should be scrapped because it "draws no strength from the deeply rooted American ideal of protecting innocent Americans from erroneous convictions." Instead, as he wrote in his 2012 book, America's Unwritten Constitution, "the rule perversely benefits the guilty...precisely because they were guilty—precisely because reliable evidence of their guilt had surfaced." Amar insists that "reliable evidence" of guilt should be admitted at trial, no matter how the government happened to obtain it. He raises an interesting point. By excluding evidence of guilt, the rule does, by design, benefit the guilty. Isn't our system of justice supposed to be designed to protect the innocent? But questions of guilt and innocence in such matters are not always as simple as Amar would have you believe. Consider the events that led to Mapp v. Ohio. In 1957, Cleveland police were hunting for a bombing suspect and wanted to search a particular two-family residence. Dollree Mapp lived on the top floor of that residence and she absolutely refused to let the authorities enter her home without a search warrant. After a stand-off of several hours, the police forced the door and proceeded to ransack Mapp's home without a warrant. Among other things, the officers rifled through her dresser, her chest of drawers, her photo album, and her personal papers. Needless to say, the police failed to turn up any bombing suspects hidden inside the photo album or squeezed inside a dresser drawer. But the police did discover some pornographic materials, and those materials happened to be illegal under state law at that time. Mapp was thus charged with possessing pornography and later convicted of that offense. Mapp was guilty of possessing pornography. But at the same time, she was entirely innocent of harboring (or being) a bomber, the ostensible reason the police illegally invaded and pillaged[...]

Is Lucia Still Cert-Worthy?

Tue, 02 Jan 2018 22:33:00 -0500

This Friday the Supreme Court will consider adding additional cases to what is already a loaded term. Among the cases the justices will consider is Raymond J. Lucia Co. v. Securities & Exchange Commission, a constitutional challenge to the manner in which the SEC has traditionally appointed its Administrative Law Judges. Lucia is the sort of case us Administrative Law nerds dream about. The prescise issue is whether SEC ALJs are "officers" under the Constitution (albeit "inferior officers) or are mere employees. This matters because the Constitution places limits on how officers may be appointed. Inferior officers may be appointed by the President, by courts, or by the "Heads of Departments." They may not be appointed in other means, however, such as by an agency's human resources deparment or the Office of Personnel Managemennt. Although the SEC has the statutory authority to appoint its own ALJs -- and the SEC itself is considered the "head" of the agency -- that is not how SEC ALJs have been traditionally appointed. Therefore, should SEC ALJs be consisdered officers, they are appointed in an unconstitutional way. When the Lucia cert petition was first filed, it seemed like an almost certain grant. The U.S. Court of Appeals for the D.C. Circuit initially rejected Lucia's constitutional challenge, creating a circuit split with the U.S. Court of Appeals for the Tenth Circuit. That split was preserved after the D.C. Circuit subsequently split 5-5 when reviewing the case en banc. Were that not enough, the Solicitor General's office filed a brief in support of certiorari, accepting petitioner's claim that the SEC's ALJs are officers and arguing the Court should not only take the case but also broaden the issues under consideration to include whether the Constitution prevents limiting the SEC's removal authority over ALJs as well. (For more on this see Jennifer Mascott's Notice & Comment post.) As this point, Lucia looked like a potential blockbuster. In its brief supporting certiorari, the SG noted the udnerlying issue has split the circuits, and was likely to recur with some regularity. But then a funny thing happened: The SEC elected to cure the potential constitutional defect by announcing it would reappoint ALJs and call for pending cases to be reconsidered so as to eliminate the Appointments Clause claim. While this decision did not necessarily moot Lucia's claim, it would prevent future claims challenging the method of SEC ALJ appointment. The circuit split remains, but the practical effect of this split has been greatly reduced. As Marty Lederman notes in a post highly critical of the SG's office: Because of this action by the SEC, the question presented will not "continue to arise absent this Court's intervention," nor will "the Commission's ability to enforce the nation's securities laws [be] put on hold pending this Court's resolution of the question presented." There is no longer any reason for the Court to consider the merits of an agency practice that no longer exists and that the agency and the Solicitor General have concluded cannot be revived. The SEC's actions don't address all of petitioner Lucia's concerns, but do seem to reduce the cert-worthiness of the case. As a general matter, the sUpreme Court is not in the business of error correction (perahps other than for habeas cases arising in the U.S. Court of Appeals for the Sixth Circuit) and rarely feels the need to resolve circuit splits that are unlikely to recur. Whether or not the justices remain interested in this case, the behind-the-scenes politics of Lucia will remain intriguing. Among other things, the SEC had the power to make this case go away much sooner than it did -- but nonetheless waited until after the SG filed its cert-stage brief before deciding to change the way it picks its ALJs. Might this s[...]

Public Sector Unions on Trial

Mon, 01 Jan 2018 12:00:00 -0500

The U.S. Supreme Court will hear a case this term that could deliver a death blow to the legal privileges enjoyed by public sector unions.

The case is Janus v. American Federation of State, County, and Municipal Employees, Council 31. At issue is whether it is constitutional for state governments to require government workers to pay union fees as a condition of employment, even when those workers are not themselves union members.

The case was brought by Mark Janus, a state employee in Illinois who objects to paying mandatory fees to a union that he refused to join. Janus argues that this violates his First Amendment rights by forcing him to financially support political speech and activity he does not agree with.

Janus' overarching goal is to overturn the Supreme Court's 1977 precedent in Abood v. Detroit Board of Education, in which the Court approved mandatory public sector union fees on the grounds that non-union "free riders" should have to contribute something toward collective bargaining activities that benefit them. Over the past four decades, that ruling has provided a major boon to the treasuries of public employees unions. (A separate area of jurisprudence covers private sector unions.) The petition filed by Janus and his lawyers calls on the Supreme Court to "overrule Abood and declare [mandatory public sector union] fees unconstitutional."

For obvious reasons, the American Federation of State, County, and Municipal Employees takes the opposite view. The existing precedent "is sound and underlies important and longstanding tenets of this Court's First Amendment jurisprudence," the union said in its brief. "At its core, Abood acknowledged that certain labor-relations interests justify the small intrusion on employees' First Amendment interests that fair-share payments represent."

The high court tackled a similar question in a 2016 case called Friedrichs v. California Teachers Association. But after the sudden death of Antonin Scalia, the justices could not reach a majority decision and deadlocked 4–4. Most court watchers believe that if Scalia had been able to vote, Abood would have been overturned 5–4.

The Supreme Court is now back to its full strength. Will Scalia's replacement, Justice Neil Gorsuch, provide the fifth vote needed to overrule the precedent? We'll find out later this term.

States Partner to Sue Massachusetts, California Over Costly Livestock Bans

Sat, 16 Dec 2017 08:00:00 -0500

Earlier this week, thirteen states, led by Indiana, sued Massachusetts in federal court, seeking to overturn a Bay State law that makes it illegal for a business operating in the state to sell veal, eggs in the shell, or pork which it "knows or should know" comes from an animal which was confined in a small cage or crate. The lawsuit, filed in the U.S. Supreme Court, argues the Massachusetts law oversteps the state's powers under the U.S. Constitution. It follows on the heels of a similar lawsuit filed last week by many of the same states—this one led by Missouri—against California, which has a law similar to that found in Massachusetts. Both suits are asking the Supreme Court, typically a court of last resort, to take up the case directly. The question the Supreme Court is being asked to address, ultimately, is whether lawmakers in any one state—here, Massachusetts and California, respectively—may dictate how farmers in other states raise livestock. These state laws are no doubt ripe for challenge. "If voters in my home state make the mistake of adopting the law, a federal court should strike down the law as an unconstitutional power grab on the part of Massachusetts," I wrote last year, months before voters in the state adopted the constitutionally defective (if well-intentioned) law. "Massachusetts's efforts to regulate farming in other states constitute extraterritorial commercial regulation in violation of the Commerce Clause," reads the lawsuit filed this week. "This extraterritorial regulation will increase the costs of producing and marketing farm commodities nationwide, including for farmers and consumers in Plaintiff States." If this pair of lawsuits rings a bell, you've been paying attention. Six states sued California in federal court over the same state law in 2014. But that suit was thrown out of court that same year. The court determined the states lacked standing, which requires an injury, traceable to the actions of a defendant, which a court may rectify. A finding that a plaintiff has standing is a prerequisite courts must find before agreeing to hear a case. The court found the plaintiff states could not prove the states (rather than, say, their residents) had suffered any injury because of the California law. However, in dismissing the lawsuit against California, U.S. District Judge Kimberly Mueller noted that injured farmers in the states that had sued are exactly the sort of people who would have standing to sue. "In short, the wrong people made the right arguments," I noted at the time. Will the Supreme Court take up the current lawsuits? The issue may well hinge, again, on standing. I'm a firm "maybe" on whether the current lawsuits will withstand challenges to the standing requirement. In the Massachusetts case, one standing claim echoes the one that was rejected by the federal court in California: that the states have "standing on behalf of their farmers and consumers, all of whom will suffer significant effects from the Massachusetts law." But the states also claim in the same lawsuit to have standing "because their agencies and instrumentalities own and operate farms and sell regulated commodities on the national market as part of a supply chain that reaches Massachusetts." That's a far better argument. In support of its claim, the suit cites Purdue University, a public state university in Indiana. "Purdue University sells livestock in Indiana and to nationwide meat distributors who then resell the products to retailers, some of whom are presumably located in Massachusetts," it reads. I think the argument that the Massachusetts law would make it more difficult for Purdue to sell to distributors who resell products to retailers in Massachusetts is a strong argument for standing. But the argu[...]

Justices Alito and Gorsuch Clash Over Cellphones, Privacy, and Property Rights

Fri, 15 Dec 2017 10:40:00 -0500

It's common to think of the U.S. Supreme Court in terms of liberal vs. conservative decisions, liberal vs. conservative doctrines, and liberal vs. conservative justices. But in the recent oral arguments in Carpenter v. United States, one of the biggest disagreements occurred between two of the Court's conservative members, Samuel Alito and Neil Gorsuch. At issue in Carpenter v. U.S. is whether federal law enforcement officials violated the Fourth Amendment by acquiring the cellphone phone records of a suspected armed robber, Timothy Carpenter, without first obtaining a search warrant for those records. Thanks to the information they obtained, federal investigators were able to trace back Carpenter's whereabouts during the time periods when several of his alleged crimes were committed, placing him in the vicinity of those crimes. That information was used against Carpenter in court. The government insists that this warrantless search did not violate Carpenter's Fourth Amendment rights because, in the words of the Supreme Court's 1979 ruling in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." In other words, Carpenter has no Fourth Amendment right to privacy in his cellphone records because he voluntarily used his cellphone, thus voluntarily disclosing his location to the various cellphone towers that handled his calls. Throughout the November 29 oral arguments, Justice Alito was perhaps the most supportive of the government's position and the most critical of Carpenter's arguments. Justice Gorsuch, on the other hand, seemed extremely skeptical of the government's stance. Gorsuch even suggested at one point that the government's position was at odds with the "original understanding of the Constitution"—not exactly a compliment, since Gorsuch is a self-professed originalist. But the real clash occurred after Gorsuch asked Deputy Solicitor General Michael Dreeben to set aside the "third party" aspect of the debate and focus instead on whether the Fourth Amendment's protection against unreasonable searches of a person's "papers and effects" should apply to the sort of digital information at issue here. "Let's say I have a property right" in my cellphone records, Gorsuch began. "Wouldn't that" make the government's actions "a search of my paper or effect under the property-based approach" to the Fourth Amendment? Dreeben thought not. "It's not your paper or effect," he said. "The problem with your hypothetical," he told Gorsuch, "is that it creates a property interest out of transfers of information." Gorsuch tried again. "Under my hypothetical, you have a property right in this information." So, "would it be a search of my paper or effect" for the government to obtain the information, he asked the deputy solicitor general. "Yes or no." "I am not sure," Dreeben replied. "And the reason that I am not sure is there has never been a property right recognized in information that's conveyed to a business of this character." In fact, Dreeben went on to add, "it's a property right that resembles no property right that's existed." At this point, Justice Alito entered the conversation. His intervention can best be described as throwing a lifeline to Dreeben while at the same time trying to quash Gorsuch's entire line of questioning. "Yeah, Mr. Dreeben, along those lines," Alito said, "I was trying to think of an example of a situation in which a person would have a property right in information that the person doesn't ask a third party to create, the person can't force the third party to create it or gather it. The person can't prevent the company from gathering it. The person can't force the company to destroy it. The person can't[...]

Senate Confirms Libertarian-Minded Jurist Don Willett to Federal Judgeship

Wed, 13 Dec 2017 18:20:00 -0500

(image) Today the U.S. Senate confirmed Texas Supreme Court Justice Don Willett to a seat on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Louisiana, Mississippi, and Texas. Willett was confirmed by a vote of 50-47.

Since joining the Texas Supreme Court in 2005, Willett has made a name for himself as a sharp critic of overreaching state government.

In Patel v. Texas Department of Licensing Regulation (2015), for example, Willett skewered state officials for requiring eyebrow threaders to obtain an expensive government license before engaging in the entirely harmless act of threading cotton string through customers' eyebrows to remove old hair and skin.

"This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee," he wrote in Patel. "It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments." (Disclosure: Willett's Patel opinion favorably cited my book Overruled).

Willett proved to be equally scornful of the state's civil asset forfeiture regime. When the Texas Supreme Court declined to take up the civil asset forfeiture case Zaher El-Ali v. Texas in 2014, for instance, Willett faulted his colleagues for effectively failing to do their judicial duty. "Does our Constitution have anything to say about a 'presumed guilty' proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?" he complained.

Now that Willett has been successfully confirmed to the federal bench, I fully expect that he will bring the same heightened degree of judicial scrutiny to the misdeeds of the federal government.

Related: From Bork to Willett: Is the Conservative Legal Movement Going Libertarian?

Did the Alabama Special Election Increase the Odds of Justice Kennedy's Retirement?

Wed, 13 Dec 2017 12:30:00 -0500

Doug Jones' upset victory over Roy Moore in the Alabama Senate special election brings Senate Democrats one step closer to retaking control of the U.S. Senate. Once Jones is seated, Senate Republicans will only retain a narrow 51-49 majority in the chamber. This will undoubtedly make it even more difficult for Republicans to get anyhting done, and increase the chances that Democrats take over the Senate in the 2018 elections. But could this election result also affect the composition of the Supreme Court? There has been rampant speculation over whether Justice Anthony Kennedy, the Supreme Court's swing justice, will retire next spring. Pepperdine's Derek Muller speculates that the Jones victory may have increased the odds. As Muller notes, if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat. Ed Whelan concurs. This could bother Justice Kennedy. Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now. I am also not sure Justice Kennedy would be particularly troubled by having the Trump Administration select his successor. Although Justice Kennedy is not as conservative as some of Trump's potential picks, I suspect he has been quite impressed by the overall caliber and qualifications of the President's appellate judicial nominations, including that of Neil Gorsuch, who worked for Kennedy on the Court. (District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.) Justice Kennedy is also no doubt aware that several of his former clerks, including Judges Raymond Kethledge (Sixth Circuit) and Brett Kavanaugh (D.C. Circuit) are on the President's Supreme Court short-list. So here's a prediction -- a prediction worth no more than what it costs to access the VC on this paywall-free platform, but a prediction nonetheless. On June 26, 2018, Justice Kennedy announces the opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, striking a balance between free expression and non-discrimination principles. (June 26, it should be noted, was also the day upon which the Court announced its landmark gay-rights decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges -- all of which Justice Kennedy authored.) Then, likely having satisifed no one but himself, Justice Kennedy will announce his retirement from the Court. If I'm right, remember it. If I'm wrong, well, I can't exactly offer you your money back now can I?[...]