FIRST ONE @ ONE FIRST

Bond and The Bar

Posted in Anticipation, Law and Politics by Mike Sacks on December 29, 2010

On February 22, while I’ll be locked in a lecture hall taking the bar exam, the Supreme Court will be hearing oral argument in what may be the most salacious suit of the term.  Bond v. United States appears so factually, legally, and politically wild that it almost makes me question my taking that term off during my 2L year: had I stayed at Georgetown rather than go to ABC News, I would have graduated in May, taken the bar in July, and been able to be at the Court in February to hear the lawyers tell the tale of a scorned woman seeking solicitude for her hell-fury under the protection of the Tenth Amendment.

In his brief for Carol Anne Bond, Paul Clement tells the story:

In 1995, petitioner moved with her mother and sister to the United States, where she became very close friends with Myrlinda Haynes, a woman who was also a Barbados native.  Haynes owned a home in nearby Norristown, and petitioner came to consider and treat Haynes as a sister.

In 2006, Haynes announced that she was pregnant.  Unable to bear a child of her own, petitioner was excited for her closest friend.  Her excitement did not last, however, for petitioner soon discovered that her own husband was the child’s father.  This double betrayal brought back painful memories of her own father’s infidelities and caused petitioner to suffer an emotional breakdown…

In the midst of this emotional breakdown, petitioner became fixated on punishing Haynes for her betrayal. Petitioner took a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and she purchased a vial of potassium dichromate through Amazon.com from a photography equipment supplier.  Petitioner knew that the chemicals were irritants and believed that, if Haynes touched them, she would develop an uncomfortable rash.  Both chemicals are toxic and, if ingested or exposed to the skin at sufficiently high doses, can be lethal.

According to the government, petitioner went to Haynes’s home on several occasions between November 2006 and June 2007 and spread chemicals on Haynes’s car door handle, mailbox, and apartment doorknob.

These facts alone are enough to send reporters rushing to the Court, but the love triangle and poisonous revenge are backed up by crazy law and strange meta-bedfellows.

Rather than be subjected to a state charge of assault, Bond’s use of toxic chemicals against her now-former best friend got the Feds involved.  They charged her with a violation of a federal statute that Congress passed in obligation to an international treaty entitled, “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.”  A grand jury indicted her under the statute’s sweeping plain language – the chemicals fit the law’s definition of banned substances “not intended by defendant Bond to be used for a peaceful purpose” – and she pled guilty after the federal judge rejected her constitutional claims against the law as applied to her.

And it gets weirder.  The scorned woman turned terrorist-in-law invoked her Tenth Amendment rights, something that’s only recently come back in vogue with the rise of the Tea Party and the Affordable Care Act.  Bond argued to the Third Circuit that the federal criminal law used to convict her was beyond Congress’s Article I authority and therefore invaded the province of rights reserved to the states and the people.  The appeals court did not reach the merits, ruling instead that Bond, as an individual, did not have standing to bring her Tenth Amendment claim absent the state or its officials as parties to her suit.

By the time Bond petitioned the Court for review, however, the United States switched sides, officially telling the justices to let her sue.  The Solicitor General urged the Court to GVR–grant, vacate, remand–the case without oral argument.  The Court disagreed and ordered oral argument.

With the Tenth Amendment and Article I limits swirling in the air these days, it is striking to see the SG in this case on the same side as Bond’s other amici: Alabama, Colorado, Florida, South Carolina, Texas, and Utah (all parties to the health care challenge awaiting decision in Florida); CATO Institute; Gun Owners of America; and the Eagle Forum.

Ultimately, this case is about Bond’s standing to bring her Tenth Amendment challenge, not the merits of that challenge.  Still, this case is a thorny thicket of jurisprudential themes.  Textually, the law does apply to Bond.  But will the patent absurdity of this law’s use against Bond compel the Court’s more textualist justices to put aside their interpretive principles?  Perhaps because this question is embedded in a contest between conservative values–deference to federal law and order efforts versus the commitment to a limited federal government–the Court’s right flank may with an easier conscience forego the letter of the law for its more equitable spirit towards Bond.

The oral argument itself may simply be a formality so that someone may argue for the wisdom of the position that the United States has since abandoned rather than GVR the case without the dignity of a proper adversarial process.  That someone who the justices assigned to adopt the orphaned argument for the Government is Stephen R. McAllister, former state solicitor general of Kansas and dean of the the University of Kansas’s law school.  Accordingly the advocates, like the arguments they will be making, will embody a clash of legal conservatism: McAllister and Clement launched their careers from clerkships in the chambers of Justices Thomas and Scalia, respectively.

Bond brings layer upon layer of exciting stuff, from its own facts and law to its place in the moment’s larger legal-political milieu.  I guess in lieu of attending the oral argument, I will just have to inspire myself with Bond’s focused rage and sophisticated legal arguments so to unleash the fury on the bar exam.

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.

My New CSMonitor Piece

Posted in Non-justiciable by Mike Sacks on September 29, 2010

I have two short articles in this week’s Christian Science Monitor.  One, an info briefing on the states’ lawsuit against the PPACA, has just been posted online:

President Obama signed the Patient Protection and Affordable Care Act on March 23. Within minutes, 14 state attorneys general filed lawsuits in federal courts in Virginia and Florida challenging the constitutionality of the law’s “individual mandate,” which will require nearly every American to buy health insurance or face annual fines.

Although the individual mandate doesn’t kick in until 2014, legal challenges to the mandate have been met with some sympathy in court. As these cases move forward, it’s worth taking another look at the suits.

Read the rest over at the Monitor’s website.  When they post the other piece, I’ll link to it.  My previous work for the Monitor is available here.

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.

Filibustering the Next Nominee

Posted in Clairvoyance, Law and Politics by Mike Sacks on April 5, 2010

The trifecta of recent Justice Stevens interviews has pushed to the fore speculation about his successor.  Such speculation has been going on for quite a while–F1@1F has been at it since its first day of existence.  This weekend, two members of the Senate Judiciary Committee, responded to the interviews with their own thoughts.

From FOXNews.com yesterday:

Senate Minority Whip Jon Kyl, R-Ariz., speaking on “Fox News Sunday,” warned President Obama not to try nominating anyone “overly ideological” to replace Stevens, who is known as the leader of the liberal wing of the court.

He suggested the party did not want anyone so outspoken as Sonia Sotomayor, who was picked to replace former Justice David Souter last year, and said the decision on whether the GOP will filibuster will “all depend” on who the next nominee is.

“I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test,” Kyl said. “And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.”

He said Republicans would only filibuster under “extraordinary circumstances,” the standard agreed to after a series of clashes in Congress over judicial nominees under former President George W. Bush.

At least one Democrat is taking Kyl’s threats seriously.

Stevens told The Washington Post he “will surely” retire while Obama is still president. But Sen. Arlen Specter, D-Pa., told “Fox News Sunday” he hopes Stevens will wait until next year to do it, when the politics in Congress would potentially be a bit less toxic.

“I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee,” Specter said. “I think if a year passes there’s a much better chance we can come to a consensus.”

Back in January, immediately after Scott Brown’s Senate win, I wrote that President Obama may be able to use Republican apoplectic overconfidence to his advantage:

Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

With Republicans resolving to run on repealing and replacing the PPACA, expect some commentators to reflect Senator Specter’s squeamishness in the face of Senator Kyl’s threats.  They will clutch Massachusetts ballots and wave the Court’s Citizens United opinion so to reveal doomsday visions of insurance companies emptying their freshly unchained coffers into the 2010 campaign on a multimedia effort to smear all incumbents who voted for health care reform as fascistssocialists, and communists.

In response to the GOP’s resolution, Obama told them to “go for it.”  He might as well have been speaking about Republicans’ including any of his possible judicial nominees in their Party of No platform for the midterm election.

Specifically, Obama must understand that if the GOP filibusters or stalls his next Supreme Court nominee into the fall, then the Republicans will be the ones that suffer come the first Monday in October.  If Justice Stevens conditions his resignation upon the confirmation of his successor, then Obama will be able to paint the GOP as a group of blackhearts gleefully depriving a 90-year-old man of his hard-earned retirement.  And if Stevens unconditionally steps down, then a Congressional minority will be held responsible for keeping the Court from operating at full capacity at the start of next term.

In either situation, the Court could become a big issue for the final month before Election Day.   Don’t be surprised if the Chief Justice, facing a massive stack of cert. petitions awaiting the justices for their late September conference, extends his public colloquy with Obama to join him in admonishing the Senate minority to cease playing politics with the Court.

UPDATE: Just as I posted this, Dahlia Lithwick’s latest, “Short Shrift: The Supreme Court Shortlist as Political Anthropology,” popped up in my reader:

As an anthropological document, the Bloomberg News list [of Wood, Kagan, and Garland] reveals a good deal about the general fatigue of the court-watchers. We’ve become so reliant upon the old scripts about “activists” and “umpires” and abortion and religion that we prefer them to experimenting with new ones.

I believe that this latest round will be the last to follow the old scripts, and even then, it may depart from them.

  • Garland will be the only nominee of the three that needn’t depart by choice or force from the old script.  He’s a moderate, and the Republicans will not push hard against him if he’s nominated.
  • Kagan’s nomination will be novel only because she is not, nor has she ever been, a federal judge.  Historically, however, Solicitors General have been commonly put forward for the Court: the last SG to have been nominated was Bork, the last to have been confirmed was Thurgood Marshall.  Still, if you thought that Sotomayor reached a certain kind of performance art perfection in her confirmation hearing stonewall, Kagan’s may be even more fantastically opaque.
  • While Wood is a federal appeals judge, she will be the first full-fledged liberal nominee to the Court since Thurgood Marshall, even if her liberal jurisprudence would have been deemed only slightly left of center in his time.  Further, with her extensive paper trail and Congress’s Democratic majority, Wood may even break the post-Bork spell on fearful, know-nothing confirmation hearings.  If she can finally kill off that bit of the old script, then Obama and future presidents of either party may begin diversifying their Supreme Court shortlists to include other capable nominees, judges or not, who can be confirmed for what they say, not for what they don’t say.

UPDATE II: Newsy.com has compiled a video roundup of the recent Stevens hubbub:

The Roosevelt Rubicon

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 24, 2010

Per the latest round of constitutional attacks on the now-passed Patient Protection and Affordable Care Act (PPACA), my original post from early January still holds.

The Roberts Court knows not to backpedal across the Roosevelt Rubicon.  Striking down the PPACA will be today’s equivalent of the pre-1937 Hughes Court’s sustained attack on New Deal legislation.

Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate to strike down the law are overheated.  We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.

I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling.  Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.

Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari.  And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.

In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.

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