Today’s unanimous decision in NASA v. Nelson–see here for my oral argument recap from October–held that the government has the power to conduct full background checks despite the argument by employees of NASA’s Jet Propulsion Lab that parts of those checks violate their right to “informational privacy.”
Writing for six members of the Court, Justice Alito refused to address whether such a right actually exists, and instead assumed its existence for the sake of rejecting its application to the JPL employees’ claims. Justices Scalia and Thomas, however, refused to go along with this compromise resolution. Instead, Scalia, in a separate concurrence joined by Thomas, returned to form with a bruising critique of the Court’s “substantive due process” jurisprudence–the very jurisprudence he adopted to extend the Second Amendment to the states in last year’s oral argument and plurality opinion for McDonald v. City of Chicago.
Nevertheless, Justice Thomas wouldn’t let Scalia return to the fold without reminding Scalia of his last year’s prodigality from their bedrock principles. I’ll let Josh Blackman take it from here:
Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.
Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.
“I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent-ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring ofunenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).“
What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.
The standoff continues.
Just a few quick thoughts before I get back to bar studies:
- Justice Kagan’s first opinion is in the first case she heard on the Supreme Court. True to tradition, it’s a dog of a case.
- Justice Scalia is the lone dissent, breaking from the tradition of unanimity for a new justice’s first opinion. Last year, Justice Thomas concurred in part in Justice Sotomayor’s first opinion. Does two years away from the tradition mean it’s no longer a tradition?
- Kagan wasted no time getting into a footnote scuffle with Scalia over the textual relevance of consulting the IRS’s “Collection Financial Standards”:
- Kagan, fn7 – “Because the dissent appears to misunderstand our use of the Collection Financial Standards, and because it may be important for future cases to be clear on this point, we emphasize again that the statute does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.). The dissent questions what possible basis except incorporation could justify our consulting the IRS’s view, post, at 4, n., but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day. The agency might,therefore, have something insightful and persuasive (albeit not controlling) to say about them.
- Scalia, fn* – “The Court protests that I misunderstand its use of the Collection Financial Standards. Its opinion does not, it says, find them to beincorporated by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must makesome loan or lease payments.” Ante, at 10. True enough, the opinionsays that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as itis not “at odds with the statutory language.” Ibid. In the presentcontext, the real-world difference between finding the guidelines incorporated and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated. And without incorporation, they are at odds with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.”
- Does citing midcentury UK law count as a dreaded citation to foreign law? Scalia: “The canon against superfluity is not a canon against verbosity.When a thought could have been expressed more concisely, one does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis. Davies v. Powell Duffryn Associated Collieries, Ltd.,  A. C. 601, 607.”
Back to the barstuffs.
The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A). Indeed, just a few of hours ago, Elie Mystal at Above the Law went there. The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.
The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.” Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.
But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.” And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government. Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt. See, e.g., the Whiskey Rebellion or the Civil War.
Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it. But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.
And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”
In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.
I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass. As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.
If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.
Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative. Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result. In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.
Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence. Who gets to keep his or her guns? What guns remain protected? Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?
While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.
It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts. But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.
UPDATE: Josh Blackman responds.
UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)
UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.
READER DISCRETION ADVISED:
THIS POST IS RATED “M” FOR MATURE.
FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.
First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench. How close? For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:
For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment. And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.
Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother. Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow. His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent? Comic books? Movies? Rap Music? Bugs Bunny?
From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini. If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.
But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry. Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors. At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism. With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”
At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.” But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”
Morazzini wasn’t destined to survive this onslaught. Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech. When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him. Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.
Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument. But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play. Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty. The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.
To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.
Graphic violence. There is a difference. We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description: Pour gasoline over them, set them on fire and urinate on them. We do not have a tradition in this country. We protect children from that. We don’t actively expose them to that.
With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith. Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:
And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?
Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest. Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away. Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.
Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground. The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past. And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.
The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning. For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?” But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.” These are words of condemnation, not of endorsement. They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start. And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.
But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court. Today, all that mattered was that more justices killed more of California’s law than they did its challengers.
Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice. Said Sotomayor:
So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.
Just temporarily is right. Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.
The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.
The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.
In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction. Problem was, they clashed over strategy.
Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.
“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired. When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”
Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in. Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.
“The only thing that’s in contention there is the question about treatment or counseling. Nothing else. So why are we talking about the universe of questions that might be asked?” It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.
But the conservatives weren’t interested in narrowness or broadness. Not yet. They wanted to know a little more about this right of “informational privacy” thing.
Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”
Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.
So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch. With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee. Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism. Big mistake.
“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.
And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.
If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.
Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.
But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals. When Stormer conceded that the government should know that information, Alito shot back. If open-ended questions are forbidden, he asked, then how does the government get at that information?
“Do you have to have a specific question on the form?” wondered Alito. One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”
Alito’s point was as funny as it was devastating.
Among the fourteen cases the Supreme Court added to its docket today, FCC v. AT&T most caught my attention. The case asks whether corporations can claim personhood so to qualify for the Freedom of Information Act’s Exemption 7(C), which exempts from mandatory disclosure records collected for law enforcement purposes when such disclosure could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”
The Third Circuit ruled that because the statute defined “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency,” then corporations were entitled to 7(C)’s “personal privacy” exemption. The FCC’s petition for certiorari, signed by then-Solicitor General Elena Kagan–who will be recused for this case–argued that the Third Circuit’s ruling upset a thirty-five year understanding that the “personal privacy” exemption only applied to individuals.
To bolster their case, the FCC cited then-Professor Scalia’s 1981 testimony before Congress that Exemption 7 did not protect “associational or institutional” privacy from mandatory disclosure upon request.
Although this case will ultimately turn on statutory construction, it still hearkens back to last year’s Citizens United, which established that corporations are legal persons whose independent campaign expenditures cannot be limited under the First Amendment’s free speech protections.
What makes this case even more interesting is that next Tuesday, the Court will hear argument in NASA v. Nelson, which asks whether a government employee has a right to “informational privacy” that allows him to withhold information in government background checks. Specifically at issue is whether an employee, once established he has done drugs, may then refuse to disclose if he has obtained treatment for the drug use. Justice Kagan will also recuse herself in this case.
Informational privacy is hardly a deeply established fundamental right. Even if it were, and if the Court’s conservative bloc embraced it, drug-tinged cases tend to soften the justices’ principles. In Gonzales v. Raich, Justice Scalia voted to approve Congress’s Commerce Clause power to ban the personal cultivation of medical marijuana, despite his earlier votes to restrict the Commerce Clause’s scope and later votes to cabin the power of the Necessary and Proper Clause. And in Morse v. Frederick, Chief Justice Roberts, who takes a largely robust view of the First Amendment, found a high school student’s unfurled banner reading “BONG HiTS 4 JESUS” to be unprotected pro-drug speech under the Court’s First Amendment-for-students doctrines.
In contrast to AT&T, the issue in NASA is not statutory, but constitutional. Further, it is grounded in an individual’s Fifth Amendment Due Process rights, not in one’s First Amendment rights, which was the flashpoint of last year’s corporate personhood contest. Still, if the Court rejects an individual’s right to informational privacy, but embraces a corporation’s ability to withhold information under the personal privacy exemption, expect some commentators’ heads to explode.
Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General. I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.
Now here comes my march of the “ifs”:
The said seat will not be open for quite some time. Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years. Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.
Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal. Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.
If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick. By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016. Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.
Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024. Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.
So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer. This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption. That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.
Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:
Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration. In the Clinton Administration, he served as National Security Advisor in the Department of Justice. He then was a very well known academic (focusing on national security questions) who also practiced before the Court. He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign. Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld. (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.) Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. [...]
Katyal has broad support in the Republican legal establishment that should smooth the confirmation process. My intuition when I decided to write this piece was actually the opposite: that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation. (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions. He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page). For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.
Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.
Of course, a lot happens between election years and Supreme Court vacancies. Nominations themselves are entirely dependent upon political timing. But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.
I’m speed-reading through the Prop 8 case decision that just invalidated the ballot measure as violating the 14th Amendment’s Due Process and Equal Protection Clauses. Judge Walker framed his decision not as creating a new right to gay marriage, but rather a vindication of the institution of marriage itself:
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages. (p. 114)
And because the Supreme Court has long held that marriage is a fundamental right, and holds that California’s domestic partnership alternative for same-sex couples is no substitute for that fundamental right. Walker then applies strict scrutiny to the plaintiffs’ claims and concludes that Prop 8 violates the Due Process Clause of the 14th Amendment, largely because he held in the findings of facts that the defense’s witnesses were “unreliable and entitled to essentially no weight”:
As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
On the Equal Protection front, Walker did not assign a heightened level of scrutiny to gays and lesbians, abiding by the Supreme Court’s refusal to cast equal suspicion on classifications based on sexual orientation as those based on gender or race. But sexual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny. Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional. Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.
But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant. If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational. Hypothetical justifications are now inadmissible opinions unworthy of deference. And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.
Walker provides an example of this leveling of rational basis and heightened scrutiny by collapsing sex and sexual orientation discrimination into each other:
Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
In doing so, he also pulls out a nugget from Justice Ginsburg’s Christian Legal Society opinion that some seized on several weeks ago as a gay marriage “time bomb” in dicta:
Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)). [my emphasis]
Just for the sake of it, though, Walker does explicitly intimate his belief that even though he is applying rational basis, strict scrutiny is appropriate:
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
This note, however, is more evidence that levels of scrutiny collapse when one recognizes animus-driven actions for what they are. More searching review may come in time for less overtly hostile acts and practices, but hopefully by that time, there will be no more suspect classes and only suspect actions.
A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal. Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court. As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges. For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.
But for unanimity’s sake, Kennedy, or maybe a justice or four in the liberal bloc, would be well-advised to latch onto Walker’s Equal Protection analysis as well. Under this analysis, Scalia has already accepted gay marriage as an legal inevitability, per his Lawrence concurrence:
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
Of couse, gaining Scalia’s vote–even in an exasperated concurrence–is wishful thinking. But at least the Court’s putative majority in Perry v. Schwarzenegger, — U.S. — (2013) will take pleasure in quoting him, as Walker did in his Finding of Fact 21(c) on page 61 of his 136-page opinion:
Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)
Nevertheless, there always does remain the chance that this putative majority may turn to mush in the face of a federal right to same-sex marriage, whether or not Walker’s framing survives the Ninth Circuit’s go-round. And as I wrote after the Massachusetts DOMA cases:
The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence. In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment? If the former, the Perry plaintiffs can take heart. If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.
We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey. But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.
Yet as a matter of political consequence, a critical mass of states has not yet come to pass on gay marriage. With only a handful of states and the District of Columbia recognizing same sex marriage, Perry may be more Roe than Loving, and I imagine that every member of the Court will have that in mind when considering the case.
What is certain is that same-sex marriage is gestating in the states, however few have so far endorsed it. The question, then, will be whether Kennedy sees Walker’s opinion as a new birth of freedom for a class long robbed of its dignity, or as a grisly killing of viable progress throughout the states’ slow and steady political processes.
When Jack Kevorkian went to prison for assisting suicides, he didn’t find God. He found the Ninth Amendment.
This documentary is in the background while I’m working on some other projects, and my ears pricked up when he mentioned the constitutional revelation that prompted his quixotic congressional run in 2008 with the late Justice Arthur Goldberg as his spiritual guide.
The Court, however, is not sympathetic. It dispatched Kevorkian’s earthly calling, assisted suicide, in 1997; denied certiorari in 2004 to Kevorkian’s own appeal of his conviction; and has barely uttered a word about the Ninth Amendment since Goldberg’s 1965 Griswold concurrence, spare for a little Scalian brush-off in 2000.
(h/t Josh Blackman for reminder of Scalia’s take on the Ninth. For those more interested in the Amendment, see Josh’s December post on current Ninth Amendment scholarship divides.)
UPDATE: Just peeked at Kevorkian’s denied SCOTUS petition for certiorari to see his Ninth Amendment argument. It’s pretty paltry. He seems to have thought much more about it since submitting the petition, or, more likely, his lawyers thought making the case to the Court was a waste of time. This is the entire section:
II. THIS PETITION SHOULD BE GRANTED BECAUSE DR. KEVORKIAN’S RIGHTS UNDER THE NINTH AND FOURTEENTH AMENDMENTS WERE VIOLATED.
As a threshold matter, the District Court erroneously determined that Dr. Kevorkian’s claim of a violation of the Ninth Amendment was procedurally defaulted on the basis that such issue was purportedly not properly placed before the Michigan Court of Appeals. In fact, this issue was properly put before the Michigan Court of Appeals, but the Michigan Court of Appeals nonetheless deliberately and wrongfully ignored the issue. Specifically, Dr. Kevorkian clearly stated that his Constitutional claim is based uponboth the Ninth and Fourteenth Amendments jointly. In fact, the Michigan Court of Appeals did render an opinion on the merits regarding Dr. Kevorkian’s position under the Fourteenth Amendment which included intertwined aspects of the Ninth Amendment. Because Dr. Kevorkian’s claim for relief in his Habeas Petition is premised upon the intertwined aspects of both the Ninth and Fourteenth Amendments, and the Michigan Court of Appeals did in fact address the merits of Dr. Kevorkian’s position, there can be no procedural default because the Michigan Court of Appeals did rule upon such issue.
Although the District Court determined that no violation of the Fourteenth Amendment had occurred on the basis that there is no constitutional right to commit euthanasia, Dr. Kevorkian never asserted a right to commit euthanasia as a basis for his appeal. Instead, Dr. Kevorkian expressly asserted only a right of the patient to be free from unbearable and irremediable pain and suffering, which right can be asserted by a treating physician when the treating physician is accused of a crime as a result of his actions in aiding the patient in obtaining medical treatment for unbearable and irremediable pain and suffering, which treatment is constitutionally permitted. Washington v. Glucksburg, 521 U.S. 702, 737 (O’Connor, J., concurring), 791-792 (Breyer, J., concurring) (1997). Indeed, the clear precedent of this Court approves of “aggressive palliative care,” such as the care provided by Dr. Kevorkian. Id. at 745,750-751 (Stevens, J., concurring).
The Court finished its business today for all but the term’s most high profile cases. Today’s decisions featured multiple heated concurrences and dissents, setting the mood for Monday’s decisions on major federalism, Second Amendment, and church-and-state cases, as well as a very long-awaited patent case that may fundamentally affect that field’s landscape.
Decided today were a trio of cases testing whether “honest services” statutes are unconstitutionally vague. Justice Ginsburg, writing for the Court in the lead case, Skilling v. United States, defined the scope of the criminal statute to bribery and kickback schemes rather than simply invalidate it. ”Skilling swims against our case law’s current,” she wrote, “which requires us, if we can, to construe, not condemn, Congress’ enactments.”
Justice Scalia, writing for Justices Kennedy and Thomas, dissented on this point, preferring instead to strike down the law instead of “strik[ing] a pose of judicial humility.” Mocking the majority, Scalia finally introduced virtual shouting into his opinions, making explicit in all-caps the tone in which we’ve long implicitly understood his dissents were to be delivered:
Since the honest-services doctrine “had its genesis” in bribery prosecutions, and since several cases and counsel for Skilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internal quotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast majority,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 (internal quotation marks omitted), THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine.
Ginsburg’s opinion additionally determined that the notoriety of Jeffrey Skilling, the former Enron CEO, did not deprive him of a fair trial. On this point, Justice Sotomayor dissented, joined by Justices Stevens and Breyer.
The Court also decided Doe v. Reed today, holding that disclosure requirements for referendum petitions do not generally violate the First Amendment. Chief Justice Roberts, writing for an eight-justice majority, refused to strike down Washington State’s Public Records Act on its face, but left open the question of whether the plaintiffs–men and women who signed a petition supporting a ballot referendum to overturn the State’s recognition of benefits for same-sex domestic partnerships–would prevail by challenging the PRA’s constitutionality as specifically applied to their own experiences.
Justice Alito, in a concurrence, emphasized what he saw as the plaintiffs’ “strong argument” in an as-applied challenge, echoing his United States v. Stevens dissent. As evidence, Alito found that “[t]he widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case”–an argument that went down in flames with most of the other justices, most notably Justice Scalia, at oral argument.
Justice Sotomayor, joined by Justices Stevens and Ginsburg, registered a concurrence on the other side of the ledger from Alito:
courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.
Justice Stevens, writing for himself and Justice Breyer, took a similar stance in opposition to Alito’s prediction:
For an as-applied chal- lenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regula- tion of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a sub-stantial burden on speech.
Concurring in the judgment, Justice Scalia continued to press for “political courage,” as he had at oral argument, by rejecting the very notion that “the First Amendment accords a right to anonymity in the performance of an act with governmental effect.” To prove his point, he noted Kentucky’s and Virginia’s early history of viva voce voting, among other examples from American history. In conclusion, he crescendoes:
Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ante, at 7 (internal quotation marks omitted). And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self- governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, cam- paigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Justice Thomas was Doe‘s lone dissenter arguing that disclosure requirements are unconstitutional, a space he similarly occupied in Citizens United‘s less-controversial holding.