FIRST ONE @ ONE FIRST

Greenhouse & The Roosevelt Rubicon, Redux

Posted in Clairvoyance, Law and Politics by Mike Sacks on December 17, 2010

Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court.  Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.

Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003’s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock.  She concludes:

In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?

Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.

F1@1F in January:

For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.

Greenhouse in March:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

F1@1F in May, post-Comstock:

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate.  Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors.  Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.

Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court.  Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year.  A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936.  The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”

How unseemly it all could be.

And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case.  The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.

Graham, Comstock, and the Chief Justice

Posted in Case Reports, Law and Politics by Mike Sacks on May 26, 2010

F1@1F has from its inception been animated by my hypothesis that the Roberts Court’s docket and decisions have been shaped the Chief Justice’s sensitivity to the Court’s surrounding political climate.  As such, Citizens United represented less an act of war against the Democratic-controlled White House and Congress, and more a picked battle strategically placed to cause minimal institutional harm to a conservative Court with diminished political capital.  Now that oral arguments are over and the politically salient cases are finally being decided, F1@1F will focus more fully on whether this term’s opinions support or disprove the hypothesis.

Last week’s opinions in Graham v. Florida and United States v. Comstock found Chief Justice Roberts unexpectedly siding with the Court’s liberal wing on ideologically divisive questions of law and politics.

In Graham, six members of the Court voted to vacate a juvenile’s sentence of life without parole for a non-homicide crime. Justice Kennedy’s five-member majority opinion, joined by the Court’s liberal bloc, declared that all such sentences categorically violate the Eighth Amendment.

Concurring in the judgment, Chief Justice Roberts hedged with an as-applied analysis rather than categorically endorse Kennedy’s expansive Eighth Amendment jurisprudence.  Yet Roberts also refused to sign onto Thomas’s categorical denial of relief, despite his joining the dissent in Kennedy v. Louisiana, which outlawed the death penalty for child rape.

In a way, the Chief’s vote seems to recognize the public ambivalence towards life without parole (LWOP) for juveniles convicted of non-homicide crimes.  As he saw it, people are either confortable enough in theory with the laws as written that allow LWOP, but are loath in practice to trust trial judges to fairly wield such awesome power; or they are uncomfortable in theory with LWOP for juveniles, but wish the death penalty still applied when confronted with particularly heinous crimes committed by almost-adults.   It was for the latter type who, like the majority, reject even the theory of LWOP for juveniles, that Roberts juxtaposed Graham, who received LWOP for armed robbery with assault or battery, with a 17-year-old who “beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill” and two juveniles “who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.”

Judging by his Graham concurrence and his joining the Kennedy dissent, Roberts’s own Eighth Amendment jurisprudence is more pragmatic and politically responsive than that of his eight colleagues.  In undertaking a proportionality analysis, Roberts’s views are apparently guided by the shock of the crime rather than the severity of the punishment.  Particular punishments are never categorically beyond the pale; only certain crimes are.

In Comstock, Roberts joined Justice Breyer’s opinion without any hedging whatsoever, thereby restoring a seemingly more expansive view of Congress’s Article I power than the Rehnquist Court would have allowed, at least before Raich. He could have joined Kennedy’s or Alito’s narrower concurrences in the judgment and thwarted a majority.  Instead, he gave a fifth vote to a mode of reasoning that may dim the hopes of those challenging the Affordable Care Act.

The Chief Justice may have felt compelled to join Breyer’s opinion, which also included the rest of the liberal bloc, so to secure for the parties and future litigants a clear holding.  I have difficulty believing that if the votes at conference were the same as they were at decision–7-2 to uphold as within Congress’s power a federal statute allowing for the civil commitment of sex offenders after their federal prison sentences have ended–the Chief would have delegated the majority opinion to Justice Breyer.  This case had serious federalism implications, after all, and Breyer’s penchant for multi-factor balancing tests and general hostility to narrower readings of Congress’s Article I powers promised an opinion that would not sit well with the Court’s conservatives.

Two scenarios, then, come to mind.  Roberts may have originally been with Thomas and Scalia in dissent, believing that Congress’s legislative powers go no further than those specifically enumerated in Article I of the Constitution.  Justice Stevens, as the senior justice in the majority, could have assigned the opinion to Breyer as a reward for Breyer’s fever-pitch dissent in Lopez protesting the start of the Rehnquist Court’s ultimately incomplete federalism revolution.  When Breyer’s opinion failed to attract five votes, Roberts may have switched his own, finding the opinion’s mushy language eminently manipulable to more conservative results in more important future cases.

The same pattern holds for a second scenario in which Roberts, unable to countenance freed sex offenders for the sake of federalism principles, may have voted at conference with Kennedy or, more likely, Alito.  If the conference counted the votes based on reasoning rather than results, then Stevens still would have been the assigning justice.

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

Together, Graham and Comstock reveal a Chief Justice acutely aware of the country’s political climate and unwilling to sacrifice the Court’s institutional legitimacy for across-the-board conservative gain.  There remain a handful of major cases yet to be decided, however, that could reveal a Chief Justice ready to gamble what remains of his Court’s post-Citizens United political capital on a few more battles.

Regular Posting to Resume Next Week

Posted in Law and Politics, Non-justiciable by Mike Sacks on May 21, 2010

I’ve just emerged from finals and am now enjoying my recovery period.  I’ve got some thoughts on this past week’s Graham and Comstock decisions, and how they relate to the Roberts Court and our political climate.  Those, as well as analysis on the Court’s forthcoming opinions on Monday, will be up next week.

Thank you for your patience!

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Conspiracy!

Posted in Anticipation, Endorsements by Mike Sacks on January 18, 2010

Welcome Volokh Conspiracy readers!  While you’re here, give the below “weekend reading” a look – I know many of you will surely have strong opinions about my observations.

Thanks to Professor Randy Barnett for the VC shout.  I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.

Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument.  Here are my preliminary thoughts:

  • Be Before 50th: The Court reserves at least fifty seats for the general admission line.
  • The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in.  By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court.  Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law.  Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007.  This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line.  I leave it up to the Klingensmiths to tell me otherwise.  Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
  • The “Mid-Majors”: Get in line by 6am.  Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy.  Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent.  Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter.  American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
  • The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough.  I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long.  There wasn’t.  I was first.  The next batch of people didn’t show up until 3:45am.  That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th.  This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reedwill likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.

Once again, thank you for coming by F1@1F.  Although I will not be reporting from line this week, I will endeavor to keep the content flowing!

Vox Populi – 1/12/10

Posted in Vox Populi by Mike Sacks on January 12, 2010

“I think it says something positive about American democracy that people are out here to see the Court and how it works,” said Ryan Lirette.  Mr. Lirette is a recent graduate of Boston University School of Law.  He is taking his law firm’s deferral year to work as a research associate at the American Enterprise Institute here in DC.  Sixth in line, Lirette arrived before 6am to see Comstock.

Last week Mr. Lirette wrote an op/ed, crossposted at the National Review Online’s “Bench Memos” blog and AEI’s own blog, urging the Court to strike down the federal statute authorizing indefinite civil commitment of convicted sex offenders after their prison sentences have run.  “The Court”, he wrote, “should take this opportunity to rebuke Congress’s gluttony by preventing it from meddling in areas that lawfully belong to the states.”  Yet when I asked Mr. Lirette for his thoughts this morning, he left his partisan bona fides on the web in favor of a civic pride that all of us standing in the dark could agree upon.

Brandon Bartels, a political science professor at George Washington University, has made his career out of studying how the Court works.  A judicial politics scholar, Professor Bartels just moved to DC in June and this was his “maiden voyage” to a Supreme Court oral argument.  He came out for Comstock primarily because he wanted to “see a case where the United States was a party,” and believed that the Court would uphold the civil commitment law, in contrast to Mr. Lirette’s argument to the contrary.

Although Prof. Bartels, a young political scientist, calls the Court a “political institution,” he does not mean it in the rawest, most cynical sense promoted by other scholars of judicial politics.  Instead, he frames the Court as an institution, rather than nine policy-driven judges, that is “forced to make decisions on political issues” by virtue of the political nature of some legal controversies.  For example, “when a court strikes down a law as unconstitutional, [the decision] has clear policy implications,” whether or not judges sought to implement their own policy preferences.

Still, he maintained that on the day-to-day basis, the Court simply doesn’t “give a crap” about politics–at least since Justice O’Connor retired.  For Prof. Bartels, this distance preserves the Court’s independence and grants it the institutional legitimacy to be the “final arbiter of what the law means,” even as the Court does follow “long waves,” or general trends, in public opinion over time.

Further down the line stood four forensic psychologists who belong to the American Psychology-Law Society.  As opposed to Mr. Lirette and Prof. Bartels, who had more academic and theoretical interests in Comstock, these women came up from Richmond because the outcome of the case would impact their field.  Civil commitments, they said, have become “huge” in their area and Comstock‘s “trickle-down effects,” however the case will be decided, will “make a difference” in their work.

Blair and Erin Miles, two years married and soon to move to Southern California, stood in front of the forensic psychologists.  The Miles’s have assembled a DC “bucket list” before they abandon their winter parkas for summer sandals out West.  Mr. Miles had been “DC born and raised,” but had “never been to a case” despite having lived in DC his whole life.  Ms. Miles, who met her husband while they were in law school at University of the District of Columbia, had “tried once before [to get into an oral argument], but didn’t make it in.”  This time, however, they arrived early enough to catch one more bitterly cold morning and their first oral argument.  To make matters sweeter, Ms. Miles works at the National Center for Missing and Exploited Children, where she “does a lot of work with the Adam Walsh Act,” which contains the civil commitment law at issue in Comstock.

Of course, no morning line would be complete without the law students.  Several, including Timothy Ziese, a Georgetown 2L who arrived with his out-of-town twin brother Jonathan to claim the third and fourth spots in line, had a zeal for constitutional law in general.  Others, such as Allison Segal of Widener Law School in Delaware, came to see the oral argument after spending months on a law review article that contributed to her near-expert understanding of the issues at play in Comstock.  Indeed, Ms. Segal went so far as to lay out her justice-by-justice predictions to conclude that Chief Justice Roberts would be the swing vote to affirm the 4th Circuit’s ruling the civil commitment statute unconstitutional.

In Comstock, a Congressional statute lay at the mercy of the Court.  But those of us who witnessed night turn to day on First Street this morning saw the same sun rise over the Court and the Capitol.  And so did it rise over us, whether right or wrong in our predictions, or right or left in our politics, as we stood united, waiting to watch American democracy in action.

Post-Comstocking

Posted in Case Reports by Mike Sacks on January 12, 2010

Conservative principles of law-and-order and limited government clashed this morning in United States v. Comstock.  At issue was the constitutionality of 18 U.S.C. § 4248, which provides for the federal government’s civil commitment of sex offenders after they have served out their full sentences in federal prisons.

On the one hand, section 4248 keeps off the streets convicted sex offenders deemed by federal authorities to be a continuing threat when they otherwise would be released back into the state where they committed their offense.  This much seems wise: if a state is unwilling to exercise its police and public welfare powers by rehabilitating its violent sexual offenders upon their release from federal prisons, the federal government surely shouldn’t just let those deemed a continuing danger to society roam free among, well, society.  This is the United States’ position in Comstock.

On the other hand, section 4248 relies on provisions of the constitution that may not authorize such federal action, however wise or well-intentioned.  Specifically, Comstock argues that the Commerce Clause and the Necessary and Proper Clause of Article I, both relied upon by Congress in creating section 4248, do not cover civil commitment of criminals when the federal government’s power, through the prison sentence has been exhausted.

Solicitor General Elena Kagan rested her argument for the United States largely on the Necessary and Proper Clause, with barely a nod to the Commerce Clause.  That much in itself was a victory for the late Chief Justice Rehnquist’s “federalism revolution,” which, to varying degrees of success, sought to limit the expansive reach of the Commerce Clause to issues more closely connected to interstate commerce than the permissive post-1937 Courts often allowed.

But only Justice Scalia truly seemed to believe that 4248 also strained the bounds of the Necessary and Proper Clause to maintain law and order.  Justice Scalia looked to the text of the Necessary and Proper Clause, finding nowhere that it authorizes the federal government to act according to what is “necessary and proper for the good of society.”  Rather, he maintained that the clause enabled the federal government’s actions that were necessary and proper to execute another power given to the federal government by the constitution itself.  As such, he agreed with what would be the defendant’s argument that the states and states alone are responsible federal prisoners whose sentences have run.

Kagan countered that indefinite civil commitment of sexual offenders under 4248 was necessary and proper to the “responsible exercise of operating the criminal justice system.”  On this point–that the federal government needed its own civil commitment regime as a “backstop” for when the state governments refused responsibility for released federal prisoners–Justices Alito and Breyer seemed sympathetic.  They peppered G. Alan DuBois, a veteran federal public defender and counsel for Comstock, with hypotheticals about the constitutionality of the federal government’s ability to deal with prisoners who grows more violent while in prison or, in the opposite instance, is injured in jail in an attack by another prisoner as his sentence ends.  Per these and several other hypotheticals, Alito and Breyer both seemed to believe that the federal government does have the power to retain custody over prisoners that it deems dangerous to public health and safety, or to themselves, upon their scheduled release from federal custody.

As Justice Breyer persisted in exploring the federal government’s power to set up, for example, national mental hospitals, Justice Scalia clutched his head in frustration: “No, No, No!  The Issue is not setting up hospitals, it’s detaining and committing people!”  Scalia simply could not believe that any governor or state attorney general, upon receiving a note or a call from the federal government, would deny his or her obligation to civilly commit a sexual offender and rather face the electoral consequences of letting such a criminal roam the state without rehabilitation. Justice Stevens then took the opportunity to look at the statute from the opposite end of Scalia’s looking glass, suggesting that the Court look to the wisdom of the statute and “assume there are cases out there that there is no solution” like Scalia’s belief that all states would naturally accept responsibility for rehabilitating federal prisoners released within their borders.

But DuBois stood firm against Stevens’, as well as Justice Ginsburg’s, apparent approval of the federal “backstop” when states refuse to cooperate.  Chief Justice Roberts tested DuBois’s position, asking that “if a state says no” to receiving a released, but still dangerous, federal prisoner, “then the federal government says, ‘you have to’?”  DuBois dug in: “Yes, the Constitution requires it.”

Scalia remained astonished that the other justices even entertained the federal government’s claims of responsibility.  Noting that states have involuntary commitment procedures, he wondered why the federal government could not simply fund an office that brings state proceedings for involuntary commitment.  “They should do that!” Dubois actually shouted in reply.  When Stevens tried to get the Court back to assessing whether 4248 itself was constitutional, Scalia shot back that the statute “isn’t even necessary!”

Towards the end of the argument, Justice Sotomayor interjected with a compromise, asking DuBois if it would be constitutional for a judge to mandate civil commitment for a sexual offender during his trial’s sentencing phase.  If such a mandate contained protections to avoid turning indefinite commitment into interminable detention, then it would be constitutional, replied DuBois.

Sotomayor’s trial-judge pragmatism may persuade all but Scalia (and possibly the ever-silent Justice Thomas) to side with public safety over rock-ribbed federalism and uphold 4248 as constitutional.  If this happens, then Scalia, confronted with Sotomayor’s aggressive questioning this term and her possible coup over his Melendez-Diaz decision in yesterday’s Briscoe v. Virginia, may finally be meeting his match.

UPDATE: Read the official transcript here and use the comments section to call me out on my own transcription errors.

Pre-Comstocking

Posted in Anticipation by Mike Sacks on January 12, 2010

Back home now to defrost my toes and shed my hobo skin.  A few thoughts before heading back to One First:

The quality of interviews from line this morning more than made up for my missing out at first in line by a single swipe at my snooze bar.

The line started building up around 5:30am.  Economists, actors, political science professors, forensic psychologists, out-of-town tourists, and yes, more law students.

United States v. Comstock, which will be heard at 10am, was the biggest draw, although my usurper–one Shannon Salembier from Vermont Law School–snagged the official F1@1F title in order to see 11am’s Abbott v. Abbott.  In contrast to yesterday, however, far fewer people in line today came “just because.”  For details, come back tonight for my Vox Populi report.

Time to suit up.  Rock!

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