This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night. In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.
Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:
This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor. At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.
Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility. They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas. Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean. Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.
Alito and Sotomayor, on the other hand, are their sides’ enforcers. Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle. In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded. Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action. Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America. It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.
The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it. For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements. But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.
This piece is cross-posted at The CockleBur.
Professor Noah Feldman has written a column at Slate that asks whether the reputations of Justices Sotomayor and Kagan will one day occupy the same rarefied air as those of Justices Black and Frankfurter. The comparison, extrapolated from a single Sotomayor dissent from denial of certiorari in a habeas case this term and nothing at all from Kagan, seems little more than an attempt to peddle his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, in which he explores the rivalries and relationships of Justices Black, Frankfurter, Douglas, and Jackson.
I am eager to read Feldman’s book–I just badgered Georgetown’s law library today about when it is slated to arrive–because I have long been fascinated by the Court’s primordial ideological oozing between 1937 and 1954. FDR appointed nine justices, all supporters of the New Deal’s constitutionality. They helped vanquish conservatism as it was known and realign partisan politics such that both Republicans and Democrats would support, or at least did not reject, the New Deal for the next half-century.
Beyond burying Lochnerism, however, the nine “young” men were left to their own devices in molding a jurisprudence for the modern era, when end of the Depression began the fraying of FDR’s big tent. World War II led to questions about executive power. The start of the Cold War returned to the Court’s docket questions of free speech rights of political dissidents. And postwar America, after destroying the Nazis in Europe, was finally forced to reckon with its own racist regimes.
The greatness of these questions required great answers. And those answers, from judicial restraint to strident activism, from originalism to living constitutionalism, all variations on even older themes of principle versus pragmatism, remain with us today.
So I found myself puzzling over Feldman’s concluding paragraph:
[O]ne lesson of Roosevelt’s court—more relevant than ever—is that strong rivalries and personalities make great justices. No fewer than four of Roosevelt’s appointees—Black, Douglas, Frankfurter, and Jackson—became towering figures in judicial history. In recent years, we have had on the left and center polite justices who do not vie for leadership—and who do not produce comparably incandescent constitutional ideas or judicial opinions. As we are beginning to see, the new justices on the Roberts Court have the chance to do better. The first move was Sotomayor’s. Will Kagan go next?
Strong rivalries and personalities are not enough to make great justices. The times must also require greatness. And greatness does not come by playing defense, for which the Court’s liberal wing has been increasingly relegated since the 1970s. Meanwhile, the left’s big offensives are towards full gay equality and death penalty abolition, and getting there depends, at least for now, on Justice Kennedy’s sense of his own greatness.
It’s hard to see right now when, if ever, the next great political realignment will occur. History says such realignments revolve around one great issue, and we’ve had only three: Revolution, Civil War, Depression. Gay rights and the death penalty, however huge they are for those in the arena now, are not epoch-defining issues that, once resolved, will bring us into a brave new world both politically and jurisprudentially. For his part, Feldman, in a New York Times Magazine article over the summer, proposed the “rediscovery” of liberal economic jurisprudence as a way to create room for the left’s greatness on the Court, but there’s a difference between quoting Holmes and Brandeis and being Holmes or Brandeis. Similarly, the conservative justices will be revisiting history, not writing it anew, if they follow the right’s flirtation with neo-Lochnerism into the death of Obamacare, and finally achieve the end of affirmative action and the reversal of Roe.
This is not to say that Sotomayor and Kagan, or Roberts and Alito, will not rise to the greatness of their most incandescent predecessors. But I’d rather have a bench full of moderates often politely–and, on occasion, forcefully–making inevitable progress in our imperfect, somewhat stable society than suffer through the doom and gloom that gives birth to a few squabbling greats.
This piece is cross-posted at The CockleBur.
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.
As the first day of oral argument on October 4 draws near, the Court will reassemble for its annual “Long Conference” on September 27 and the investiture of Elena Kagan on October 1. Somewhere amid this preseason activity, the justices will pose for their class picture, taken only when a new justice joins the Court.
The Oyez Project has these photos going all the way back to the early Chase Court of 1865. Through the class pictures, the Court’s institutional continuity is set before us in plainly human terms. Young men and women share the stage with their elders, only to become elders themselves. Sometimes a single justice links generations disappeared and developing, such as John Paul Stevens, William J. Brennan, William O. Douglas, Oliver Wendell Holmes, and Stephen J. Field.
Naturally, all eyes will be on Justice Kagan for this year’s class photo, as they were on Justice Sotomayor for last year’s. But a question for both comes to mind: neck doily or no neck doily? For Sotomayor’s investiture and the class photo, she wore the neck doily–or jabot–that Justices Ruth Bader Ginsburg and Sandra Day O’Connor had long donned. Sotomayor kept the jabot on for Citizens United, her first oral argument, but when the Court reconvened a month later, she had done away with the doily for the unadorned black robe.
So will Sotomayor reapply the doily for this year’s class photo? And what about Kagan? Going without it is not without precedent: although O’Connor introduced the jabot, she went without it for every class picture until Ginsburg joined the Court. But surely neither Sotomayor nor Kagan will want to return Ginsburg to her lonely doilihood of the O’Connor-Sotomayor interregnum.
Speaking of Ginsburg, this year’s photo will be her first seated in the front row. Given her diminutive height, another question emerges. If her feet don’t touch the ground, will she bring back the Fuller Foot Pillow?
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.
For some exceedingly brief weekend reading, check out this letter to and from Justice Sotomayor. While you’re at it, see who won a reply-race between Presidents Clinton and G.H.W. Bush.
I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–”single entity theory”–in favor of another–”Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.
My oral argument write-up for Monsanto is now up at the ABA Journal:
The Supreme Court today was slated to consider in Monsanto Co. v. Geertson Seed Farms how nigh the organic alfalfa apocalypse must be to justify a federal district court’s nationwide injunction against the use of an agricultural giant’s genetically modified alfalfa seed.
But the Court this morning proved as resistant to the parties’ arguments as Monsanto’s alfalfa is to Roundup weed-killer. Instead of assessing, as expected, what degree of likelihood of environmental harm must be considered in order for a court to issue an injunction under the National Environmental Protection Act (NEPA), the justices spent the hour snarling at this case as if it were an unwanted weed growing in the Marble Temple.
Read the rest here.
I’m off to the Court now to be not first for tomorrow morning’s argument in Doe v. Reed–the final argument of the Court’s term and Justice Stevens’s career. Keep your eye on my twitter feed, where I’ll be updating on the line’s progress through the night.
The milestone is more exciting than the dissent itself. In Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, the Court considered whether the False Claims Act bars qui tam–or whistleblower–actions based on information in “administrative” sources from state and local governments along with those from the federal government. Justice Stevens wrote for a 7-2 majority that the FCA’s qui tam bar does reach state and local sources. Justice Sotomayor, joined by Justice Breyer, would have held that the statute only implicated federal sources.
Both Stevens and Sotomayor divined their decisions by applying the maxim of “noscitur a sociis,” in which an unclear word in a statute “may be known by the company it keeps.” The two sides battled over the word, “administrative,” in the middle of the FCA’s phrase, “in a congressional, administrative, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation.” Stevens did not find “congressional” and “GAO” dispositive of a federal limitation to the whistleblower bar.
Sotomayor disagreed, noting that
[t]he three terms…the Court concludes, are “too few and too disparate” to justify invocation of noscitur a sociis. We have not previously constrained the canon in this way, and I would not do so here. [...]
Here, application of the noscitur a sociis principle readily yields a common feature: The sources at issue are federal in nature, not related to state or local governments or private entities.
As I wrote above, nothing too exciting in the substance of Sotomayor’s dissent, perhaps except in the fact that her opinion would have allowed for greater access to Courts for whistleblowers under the FCA.
In the unsurprising nonmilestone file, Justice Scalia wrote a concurrence rejecting both sides’ reliance on legislative history:
it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.