My write-up from this morning’s oral argument in Doe v. Reed is now up at the ABA Journal:
Today marked Justice John Paul Stevens’s final oral argument of his nearly thirty-five year career as an Associate Justice of the United States Supreme Court. Although Stevens has two more months of opinion announcements to get in a few more words as an active justice, his sole question during this morning’s argument in Doe v. Reed might as well have been his valedictory address to the Court and the country.
For nearly thirty minutes, Justice Stevens listened to the petitioners’ lawyer, Jim Bopp, argue that men and women who signed a petition to place an anti-gay rights referendum on the state ballot had a First Amendment right to privacy in their political associations that protected them against harassment from those with opposing political views. Accordingly, Bopp maintained, Washington State had no compelling justification to release, pursuant to the state’s Public Records Act, the signers’ name and information.
Then, as the white warning light turned on upon Bopp’s lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone.
Read the rest here.
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 Court has held by an 8-1 vote that a federal law criminalizing depictions of animal cruelty is “substantially overbroad,” therefore violating the First Amendment. The opinion was written by Chief Justice Roberts; Alito dissented.
That’s the second Congressional law that the Court has struck down this term on First Amendment grounds. The first was Citizens United. This one, however, will be far less controversial. In fact, this case pitted liberal value vs. liberal value: anti-restrictions on violent or obscene speech vs. animal rights protections.
This term’s big conservative value vs. conservative value case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which pits federalism concerns against property rights, remains to be decided.
Fun, gloating fact: I attended both Stevens and Citizens United before I started F1@1F!
My argument write-up on Christian Legal Society v. Martinez is now up at ABA Journal:
From the justices’ questions at oral argument this morning in Christian Legal Society v. Martinez, it appeared as if the Supreme Court intended to begin its final sitting of the term by gifting Justice Stevens, the Court’s newly minted nonagenarian and retiree-designate, the opportunity to control how this morning’s case will be decided.
Read the rest here. Check back tomorrow for my Vox Populi column from last night/this morning’s CLS line.
JUSTICE BREYER: Can I ask you a related question, which will show what I’m trying — another thing that is worrying me. Suppose we are in the Armed Career Criminal Act.
Now, I have — this is my hypothetical. You have heard of cat burglars. Well, this gentleman is called the pussycat burglar and the reason is he never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream.
It is absolutely established that this person in breaking into that houseat night only wanted to steal a pop gun, and he is the least likely to cause harm in the world.
Question: He is convicted of burglary. Is that a crime of violence? Answer?
You’d think that the scene from the above picture–taken as I exited the Court after Carachuri-Rosendo–would indicate that something exciting was happening inside. But you’d be wrong.
Probably a third of those on the right side were the lawyers, law students, and aspiring law-types who remained from 7am but could not get into Carachuri. Moments later, a handful of these folks would be ushered in to see Robertson v. U.S. ex rel. Watson.
The rest of the orderly mass outside came to sate their Supreme Court curiosity while in town for Spring Break or the Cherry Blossom Festival. I hope they get in for a three-minute glimpse of the Court in session. Otherwise, at least they can bask in the beautiful day.
Meanwhile, I am now back home and trying to figure out what to make of this morning’s session.
Justice Stevens read the Court’s opinion in Padilla. The decision, joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, punted on whether Padilla could claim ineffective assistance of counsel for his lawyer’s mistakenly assuring him that he needn’t worry that a guilty plea would result in his deportation. The Court did hold for the general principle that a lawyer for an alien charged with a crime has a Sixth Amendment obligation to tell his client that a guilty plea may result in deportation. Justice Alito, joined by Chief Justice Roberts, read that obligation narrowly in his concurrence in the Court’s judgment; going one step further, Justice Scalia, in a dissent joined by Justice Thomas, called the obligation “permanent…overkill.”
Carachuri-Rosendo proved equally unsatisfying. The main argument was whether an alien, charged with a second state misdemeanor drug offense, could be considered a felon under federal immigration and drug laws when the prosecutor failed to charge him as a recidivist offender. Lawyers from both sides ably argued and the justices asked spirited questions, but the substance of the law at issue so obscured the case’s broader ramifications that even Justice Breyer’s crazy “cat burglar” hypothetical–which, to his merit, involved pillows and ice cream–could not save this reporter’s story.
As far as F1@1F is concerned, then, the Court’s March sitting was a bust. No big arguments, no big opinions, and the argument and opinion that could have been contenders fizzled out today. Even this morning’s line, though fun and massive, held no story!
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.
The public colloquy between President Obama and Chief Justice Roberts continues, but this time they have acted in concert rather than at loggerheads.
At Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, the Court considered whether the five-seat NLRB could command a quorum of three when only two members actually sat on the board. The Government argued that two board members could, in fact, constitute a quorum for NLRB deliberations in the face of Senatorial obstruction to the President’s three nominees to the NLRB.
After Justices Kennedy, Scalia, and Ginsburg grilled Deputy Solicitor General Katyal over the broken nomination and confirmation process, Chief Justice Roberts lobbed a final, “why are we even here?” question: “And the recess appointment power doesn’t work why?”
Today the President demonstrated that he heard the Chief Justice’s suggestion and used his recess appointment power to place two of his NLRB nominees, both Democrats, in their posts. Obama left unappointed his third nominee, a Republican.
Whether Obama’s move will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain. Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question. For this reason, the Court may “G…VR” the case for consideration by the newly quorum’ed NLRB.
Nevertheless, New Process Steel’s claim remains grounded in the fact that a statutorily questionable two-member NLRB rendered a decision against the company; indeed, there stand many NLRB decisions made by its two members whose statutory legitimacy would remain questionable without the Court’s ruling.
Further, even with the four members now sitting on the NLRB, simple math and recess appointment rules suggest that the Court would do well to clarify matters: first, one NLRB member is set to retire this summer; second, the two members appointed today may not receive Senate confirmation at the end of the next session of Congress–and at least one has faced significant opposition. Four minus one minus one or two. That’s back to below three NLRB members.
The concrete grievances over the legitimacy of past two-member NLRB decisions such as the one against New Process Steel are far more persuasive reasons why the Court should address the merits of this case than the fear of some future moment when the NLRB dips back down below three members. But that fear of the future will surely affect the Court’s reasoning if it does choose to decide the case so to retroactively (and therefore prospectively) bless or condemn the two-member decisions.
- Chief Justice Roberts, super-restrained stare decisis security guard:
- Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.
Your approach - your original approach [with the Privileges or Immunities Clause] would give judges a lot more power and flexibility in determining what rights they think a good idea than they have now with the constraints of the Due Process Clause.
- Justice Scalia, faint-hearted originalist foe of abortion and gay rights; rock-ribbed textualist:
- I’m not talking about whether — whether the Slaughter-House Cases were right or wrong….[W]hy are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due [process]? […] Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?
- I guess we have applied substantive due process with regard to the necessity of permitting homosexual conduct and with respect to the necessity of permitting abortion on demand.
- That may be the reason it was put there. But it was put there. And that’s the crucial fact. It is either or it is not there. And if it’s there, it doesn’t seem to me to make any difference why they chose to put that one there as opposed to other ones that they didn’t put there. It’s either there or not.
- Justice Stevens, old man minimalist:
- [W]ould you comment on Justice Kennedy’s question about whether it necessarily incorporates every jot and tittle of the Federal right into the [states], keeping in mind that with regard to trial by jury in criminal cases there is a difference, non-unanimous juries. Why does this incorporation have to be every bit as broad as the Second Amendment itself?
- Justice Ginsburg, foreign law feminist:
- Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
- [I]f the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
- Justice Breyer, professorial pragmatist:
- Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their — their gun law has saved hundreds, including — and they have statistics — including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter.
- [L]et’s make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers. And he would say insofar as that right to bear arms is important for the purpose of maintaining the militia, it’s high on the ordered liberty chart. Insofar as the right to bear arms is there to shoot burglars, it’s low on the ordered liberty chart.
- Justice Sotomayor, “she really can’t be that moderate, can she?”
- [O]ur selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line. Is it the ordered liberty concept alone in our jurisprudence that you are relying upon, or is it any other articulation of our incorporation doctrine that supports your view?
- Justice Kennedy, Coy Finder of Fundamental Rights:
- What are these other unenumerated rights?
- Justice Alito, throwback:
- Well, doesn’t [the PI Clause] include the right to contract? Isn’t that an unenumerated right?
- Justice Thomas, silent but scrutable. He’ll be the only one voting to overturn Slaughter-House and revive the PI Clause.
My write-up of this morning’s oral argument in McDonald v. City of Chicago is now live at ABA Journal:
In McDonald v. City of Chicago, the Supreme Court made clear that the penalty for constitutional grave-digging is death by firing squad. […]
The big question going into today’s argument was not whether the justices would incorporate the Second Amendment—the Heller Five were guaranteed to do so—but rather how they would incorporate.
This is where it got bloody for Alan Gura, petitioners’ lead counsel and Heller’s victorious advocate.
Read the rest here.