The Supreme Court broke its streak of pro-First Amendment decisions in today’s decision in Holder v. Humanitarian Law Project. This “very difficult case,” as Justice Kennedy described it at oral argument, was decided by a 6-3 vote in an opinion written by Chief Justice Roberts. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.
The opinion held that the First Amendment does not bar the criminal prosecution of the Humanitarian Law Project (HLP) under a federal statute criminalizing “material support” to groups designated as terrorist organizations by the United States government. HLP provided lessons on international law and non-violence to groups such as the Kurdistan Workers’ Party (PKK) and the Tamil Tigers. The majority refused, however, to determine whether the federal statute would be constitutional as applied to “more difficult cases” that could arise in the future.
This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms. In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment. In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.
The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay. Their fingerprints may be seen in the passages urging moderation:
We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” …For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may pro hibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.
As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less strin gent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …
Stevens dissented in Texas v. Johnson, writing that he would have allowed the criminal law against flag burning to stand where the five-justice majority–in which Justices Scalia and Kennedy joined the liberal bloc of Brennan, Marshall, and Blackmun–applied a maximalist view of the First Amendment to strike down the Texas law.
Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism. He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.
Justice Breyer read his dissent from the bench today, stating that the federal statute could not survive strict scrutiny. Breyer, however, is no First Amendment maximalist himself, despite this morning’s oral dissent. Today’s decision, when compared with this term’s earlier First Amendment decisions, is a reminder that on the Roberts Court there is no unyielding free speech champion. Instead, the justices use the First Amendment as an ancillary issue to be used to their advantage on cases that touch their greater concerns, be they national security or campaign finance.
Breyer’s oral announcement of his dissent marked the second time this term a justice has done so. Justice Stevens spoke for 20 minutes to protest Citizens United back in January. There may be others yet, as a few more charged cases remain for the Court’s Thursday and Monday sessions.
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.
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.
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.
In today’s New York Times Week in Review section, Peter Baker writes of “Obama v. Roberts: The Struggle to Come“:
The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.
This assertion defies facts. In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral dominance than he had at the start of his Chiefdom. From F1@1F’s very first post:
During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress. Meanwhile, the Roberts Court aggressively pushed rightward on abortion, student speech, school desegregation, gender discrimination, and campaign finance. The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate. The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene. Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision. This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans. The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes. In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.
Since I wrote that in December, Citizens United has emerged, as expected, as the Court’s one big rightward expenditure of its political capital this term. And although the McDonald oral argument put to death my speculation of a grand bargain between the Court’s liberal and conservative blocs, its result–incorporation of the Second Amendment to the states–will not cause a national backlash and political firestorm.
The OT09 docket’s conspicuous absence of any other red-hot button case is, in my opinion, hardly an accident. Roberts knows just how much–or little–political capital his Court possesses to achieve conservative gains under a Democratic electoral mandate, and he has picked his battles accordingly. Baker’s sources are in plain error to use Citizens United as proof of a more aggressive, confrontational Roberts Court.
Baker’s article was not a total wash, however. Noting the Chief Justice and the President’s public colloquy of late, the article concludes:
The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.
“Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”
We sure could.
UPDATE: Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs):
How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won’t be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream–on issues like the death penalty or economic regulation–it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.
Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats’ agenda? What will happen, in particular, with health care?
We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.
Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.
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 fascists, socialists, 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 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.
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.
UPDATE: Radar has rescinded its rumor:
RadarOnline.com has obtained new information that Justice Roberts will NOT resign. The justice will be staying on the bench.
Radar should know better than to freak out SCOTUS junkies with highly improbable, if not flatly impossible, rumors that will never fail to make us freak out despite ourselves.
UPDATE II: Above the Law has the story behind the story:
Like many a promising legal career, the Roberts resignation rumor traces its origins to a 1L class at Georgetown University Law Center….
This can’t be right:
Drudge follows up:
TOP COURT SOURCE TELLS DRUDGE: 'THIS IS NOT HAPPENING... NEWS TO ME'... DEVELOPING...