Thursday, January 28, 2010

The Alito dis

The hot Supreme Court news of the day has been, not so much the President's sharp words for the Court about Citizens United, but the reaction of Justice Samuel Alito. Seated only a few feet from the President in the second row, Justice Alito shook his head several times and mouthed the words "that's not true." You can watch the footage here.

Alito has a point here, at least a technical one. The Court did not overturn a century of precedent, as Citizens United only concerned corporate direct expenditures, not corporate contributions. But I think justice Alito is sort of missing the forest for the trees. And he failed to realize that, in a situation like this, his actions are only going to make him (and the court) look worse. Stated differently, there is nothing to be gained (as a Supreme Court justice) by being seen on television shaking your head at the President during his State of the Union address, no matter how correct you are.

As I mentioned last night, this is all pretty interesting. And pretty funny.

Question about the Prop 8 trial

QUESTION: At the Prop 8 trial, there seem to have been many arguments from both sides about the prejudices and/or political power gays and lesbians may face, as well as posturing about what marriage should mean. But all of these arguments (1) seem irrelevant, in light of the issue of standing, since they address generalized issues rather than a "particularized" interest for the particular plaintiffs, and (2) not really on point, that they don't address plaintiffs are harmed if they are denied married status. So is this testimony merely being admitted because of the widespread popular interest?

ANSWER: Actually, these arguments are quite relevant to what is at issue, but as you rightly point out, they are not relevant to whether the plaintiffs have standing. There are two points to understand in response to the question:

1. The parties at the Prop 8 trial have not been arguing about standing. The two sets of plaintiffs seek to be married, and they were denied marriage certificates by the State. Thus, the plaitiffs have an injury in fact caused by Prop 8 that would be redressed by having Prop 8 declared unconstitutional. In short, they seek the legal status of marriage, and the government is denying them this right. Standing law does not demand they show that what they seek will actually benefit them some deeper sense (life-long bliss, or what have you). So yes, the testimony is indeed irrelevant to standing, but that is because standing is clearly satisfied and thus not at issue.
2. The testimony is relevant to a variety of factual points important in the case, the relevance of which you will only be able to fully appreciate once you have studied the Equal Protection Clause in some depth. One relevant factual issue is whether there was any "rational basis" for Prop 8 beyond pure animus (or hatred) directed towards gays and lesbians. Another relevant factual issue is whether gays and lesbians constitute a "discrete and insular minority" in our society such that laws discriminating against them warrant more searching judicial review. (Hence the relevance of the testimony concerning the political power of gays and lesbians.)
It is reasonable to ask whether these are truly "factual" questions in the ordinary sense -- case-specific facts to be resolved through trial testimony. They seem more to be broader conclusions about the current state of the world, the type of facts that judges decide on their own, rather than through the presentation of live testimony. But Judge Walker wants to create a trial record on these questions (perhaps -- by converting the relevant standard of revieiw on these matters to "clear error" -- to make it more difficult for appellate courts to overturn him?). And as the presiding judge, that is his prerogative.

Tuesday, January 26, 2010

More on Lujan and standing

QUESTION: If I'm understanding the discussion from yesterday's class correctly, Scalia's opinion in Lujan rejects the ability of Congress to confer standing to all citizens to sue for a violation of a given law -- in effect saying that individuals must have standing in a more traditional sense (i.e., injury in fact, causation, and redressability). Note 8 points out that Scalia doesn't have a majority for this opinion and that Kennedy and Souter's concurrence would allow citizen suits if Congress is specific about the nature of the injury. The discussion in class today seemed to suggest that Scalia's approach was the accepted norm. Is that the case?

ANSWER: I think, in a sense, both of those ideas are correct -- or at least we can make sense of them together. (Kennedy, after all, joined the majority opinion in Lujan.) How can we do so? I think all of the majority in Lujan agreed that Congress cannot simply confer an injury in fact on anyone it pleases, regardless of the nature of that injury. There are some constitutional limits. (Scalia sees those limits differently than Kennedy and Souter, but all three agree that there are limits, and that they were passed by the citizen suit provision in the ESA.)

That said, Congress can indeed create rights, the violation of which will constitute an injury in fact, even though no such injury would exist but for Congress's statute. It is a matter of degree. The citizen suit provision in Lujan went too far, as it literally conferred standing on everyone, no matter their connection to the allegedly illegal conduct. The "injury" was too diffuse and too abstract to meet the requirements of Article III. But other citizen suit provisions (such as that upheld a few years later in FEC v. Akins) could be more narrowly drawn, conferring standing on persons with a more clearly concrete or particularized interest in the allegedly unlawful action.

In short, I think both the majority opinion in Lujan, as well as Kennedy's concurrence, are consistent with the present state of the law. The trick lies in seeing the difference between Lujan and a case like Akins, where the Court held that the plaintiffs had standing.

Some more

QUESTION: I'm wondering about cases for declaratory relief and how this fits the "case or controversy" requirement and how ripeness is handled in these cases. I admittedly don't know much about suits solely for declaratory relief, but I can imagine a problem in which a Plaintiff peremptorily seeks declaratory relief. My question is how the court would deal with the case or controversy language (there is no controversy between the parties yet) and how ripeness might play in such a suit.

ANSWER: Terrific question. Actually, I think the tougher question is one of standing (and, in particular, redressability) rather than ripeness, but the two are closely related (and perhaps overlap in several cases). The essential problem is this: how does a mere declaration by a court that a certain law is unconstitutional possibly redress the plaintiff's injury? This was a very big question in constitutional law shortly after Congress enacted the Declaratory Judgment Act. (Depending on the case, there might be a ripeness issue if the plaintiff's injury had not yet come to fruition.) But the Court upheld the Declaratory Judgment Act. Why? In essence, the Court concluded that a declaratory judgment largely provides the same relief as an injunction (for if a court has declared that a law is unconstitutional, then the government's subsequent attempt to enforce it would be unlawful, much like violating the terms of an injunction). Thus, so long as a plaintiff has standing to pursue prospective relief generally, she will have standing to seek a declaratory judgment. As to the specific issue of ripeness, it is question of how imminent the injury is. Recall that the plaintiff need not have suffered an actual injury; it need only be imminent. Thus, in a preemptive type suit (e.g., the government has enacted new regulations, and the regulated party sues before complying) it really is a question of how soon the plaintiff will suffer some impact.

QUESTION: I'm wondering about situations in which a defendant creates a significant harm that everyone has an interest in preventing, but that either (A) doesn't affect a single person more than any other person or (B) affects a person who chooses not to sue. In either case, the population generally has an interest in bringing suit. But under Lujan, no one would have standing. I'm thinking of a pollution case in which there is massive amounts of pollution, but only the population generally is affected/has an interest in bringing suit. Is there a solution to this problem? Again, I don't know enough about environmental cases, but what I'm really trying to get at is a situation in which everyone is harmed equally, but under Lujan, no one has a right to sue. Is there a solution to this problem?

ANSWER: As to the first situation, I think FEC v. Akins largely answers this question. Notice what the Court says there: so long as the injury is sufficiently concrete, it is okay that it is not terribly particularized. I think this is in some tension with Lujan, and unsurprisingly Scalia dissented in Akins. But Akins was decided after Lujan, and Kennedy joined both opinions. So the two can be reconciled. In other words, there can be standing for widely shared harms, so long as the injury is sufficiently concrete (and not too abstract, such as a general interest that the government comply with the ESA).
As to the second situation, we should keep in mind that there are many constitutional violations for which no one will have standing to sue. (There are also many constitutional issues that are deemed "political questions," and thus non-justiciable even if some plaintiffs might have standing.) In fact, this is extremely common. (Who would have standing, for instance, to challenge the Obama administration's decision not to prosecute certain possessors of marijuana, even though they are clearly violating federal criminal law?) In these cases, the solution is not through adjudication. Rather, the solution (if there is one) is through the political process -- either in the other branches fighting one another, or ultimately through elections.

Some questions following Monday's class

QUESTION: I know we discussed the idea of why the Supreme Court did not agree with Congress's "citizen-suit" provision because it did not specify a direct individual injury. But can Congress create standing if it is more careful to elaborate on actual injury? For instance, in the ESA case the injury was too broad, but if it was more specific, perhaps saying that any scientist injured by this procedural defect, someone whose livelihood is actually based on the availability of endangered species then would the Court have recognized that type of "citizen suit?"

ANSWER: The short answer is yes, potentially. The longer answer is that, as Lujan shows, Congress cannot simply deem anyone to have standing by statutorily conferring an injury on them. That is not enough. The Constitutional requirement that the plaintiff have suffered an injury in fact cannot be answered purely by reference to what Congress says. But, as you rightly note (and Justice Kennedy's concurrence is critical on this point), Congress can create standing where it otherwise would not have existed. Congress can identify injuries and chains of causation that had previously been unrecognized, such that a plaintiff would (when considering the statute) have an injury in fact. It is a matter of degree. To the Court, the ESA citizen-suit provision, at least as applied to Kelley and Skillbread, went too far. It did not require that their injuries be particularized in any way. But in other cases, where the citizen suit provision is limited to persons more directly or particularly affected by the allegedly unlawful conduct, it can be sufficient to confer standing.

QUESTION: In Ex parte McCardle, since the Supreme Court had jurisdiction all the way up until Congress repealed the Act of February 1867, could that be a case that is then determined to be moot, since there is no issue -- the Supreme Court cannot hear the case anymore due to a lack of jurisdiction -- or is that expanding the idea of mootness too far?

ANSWER: It is quite similar to the idea of mootness, but it is technically different. When a case is moot, there is some reason that the underlying dispute on the merits is no longer appropriate for judicial decision -- for instance, the plaintiff's injury no longer exists, or the injury is no longer reddressable. The court must dismiss the case because it is no longer justiciable. In McCardle, the underlying merits issue was not moot; had the Court been able to reach the issue, the injury was still there and was reddressable. Rather, the problem was that the Court simply could not reach the merits issue because Congress had removed the Court's jurisdiction over the case.

Thursday, January 21, 2010

More McCardle

QUESTION: I feel like I am missing something on the McCardle case as it relates to the last line of the opinion, "...But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised." Section 14 of the Judiciary Act of 1789 states only that the judiciary can issue the writ for "the purpose of an inquiry into the cause of commitment." Conversely, the the Act of 1867 states that the Federal Courts can issue writs "in all cases where any person may be restrained of his or her liberty in violation of the Constitution." Thus, the "jurisdiction previously exercised" as noted by Justice Chase seems to be significantly more limited than the broad powers granted in the 1867 Act. That is, the powers prescribed in the 1789 and those taken away in the 1868 seem to be very far apart. Yet, if that is the case, it seems to me that Chase would have put up more of a fight? I am just wondering how much power the Court wielded to issue writs of habeus corpus prior to the 1867 and following the repeal in 1868. Was this is as big a loss as it appears?

ANSWER: This is a terrific question. But I'm not sure, at least based on these words alone, that I would draw the same conclusion. An inquiry into "the cause of commitment" might well include--one could say must include--an inquiry into whether that "cause" is consistent with the Constitution. If so, then the two provisions cited are providing jurisdiction to reach the same substantive questions. That said, I do not know for sure whether the two provisions were commensurate. But consider this: two years later, another southerner (Yerger) challenged his detention much like McCardle, but instead invoked the jurisdiction provided under the Judiciary Act of 1789. To my knowledge, his underlying substantive claims (about the unconstitutionality of his detention) were largely the same. And the Court held in Ex parte Yerger that there was jurisdiction to hear Yerger's appeal in the federal courts. (It then remanded the case to the lower court, at which point President Grant released him from custody, rendering the case moot and preventing the Supreme Court from issiuing an opinion on the merits that might endanger Reconstruction.)

In short, thus what McCardle accomplished (in addition to upholding certain uses of the Exceptions Clause, as I described in a prior post) was to force the detained ex-confederates to go through some longer, additional legal hoops. But it did not close off or alter the nature of the appellate review available at the Supreme Court. On this point, it is worth noting that the Yerger decision refers to the jurisidiction available under the February 1867 Act as "more convenient" than that available under the Judiciary Act of 1789, but it does not advert to any substantive differences in terms of what issues might be reviewed.

Again, a terrific question. I hope this serves as at least a partial answer.

More questions on McCardle

QUESTION: I'm not sure I understand what we're supposed to take from Ex parte McCardle. I think I understand some things about the case: (1) that the Congress is free to grant and take away jurisdiction from the jurisdictional "storehouse" enumerated in the Constitution. That is, Congress can grant and take away jurisdiction over cases listed in the constitution; (2) that the Court cannot hear cases it has no jurisdiction over; and (3) that there is a question whether Congress can close off all "routes" an issue could take to the Court.

ANSWER: I definitely agree with (2) and (3). As to (1), yes, but there are caveats, as your point (3) itself makes clear. The Exceptions Clause must stand for something; there must be something that Congress can except from the Court's appellate jurisdiction. But the contours of this power are by no means clear. As I mentioned in my earlier post, I think it can do so through fairly neutral rules that are not gerrymandered to generate particular results. But others think that there always must be some route to the court.

QUESTION: But, McCardle's holding doesn't seem to rest on a new or novel rule of law. The case simply ends with the conclusion that the Court has no jurisdiction. I don't understand what the controversy was. What was the issue in the case? By this, I mean that I don't understand the "take away" from the case. Do you have any insights? Anything would be appreciated.

ANSWER: A very real issue in the case is whether the Act of March 1868, purporting to withdraw jurisdiction, was constitutional. There were two potential problems: (1) the Exceptions Clause might have been narrower than the Court construed it, so that it only permitted Congress to make rather small, technical exceptions or regulations regarding the Court's appellate jurisdiction; wholesale removal of jurisdiction in a broad set of cases might have been beyond the power granted by the Clause; (2) even if the Exceptions Clause in general would permit this sort of exception, it might have been unconstitutional in this particular case because it was specifically motivated to produce a desired result in a pending case; in other words, it might have been seen as a separation of powers problem, an impermissible meddling of the legislative branch in the independent affairs of the judiciary. The Court, of course, found no constitutional problem with the repealing act. It successfully and constitutionally removed jurisdiction, depriving the Court of the authority to say anything about the constitutionality of McCardle's detention.

I'm not sure any of that qualifies as "insightful," but it is what I can offer.

Citizens United v. FEC

The Supreme Court did indeed hand down its decision in Citizens United this morning. And as expected, it held that federal law's current restrictions on the independent campaign expenditures of corporations violates the First Amendment. In other words, the Constitution does not permit the government to treat corporations (or unions or any other sort of association, one supposes) any different than individuals. This means that corporations (and other associations) can spend as much as they want to influence elections. The split was 5-4, with the usual ideological division. (By a separate 8-1 vote, the Court upheld the law's disclosure requirements.)

There are two more shoes that seem reasonably likely to drop. As the law stands today, there are now greater restrictions on political parties than there are on corporations or labor unions. That makes no sense. The restrictions on party expenditures seem likely the next to drop.

Further, the Court's rationale seems to suggest that there is not much of a difference between independent expenditures and direct contributions. That is, if there is no concern about corruption (or the appearance of corruption) with the former, even though they have roughly the same impact on election outcomes, it seems that there could not be a constitutionally sufficient concern with the latter, either, to justify legal restrictions. Thus, the whole tower of campaign finance regulation seems likely to fall soon, at least so long as the Court's composition (with respect to the five in the majority) remains the same.

The full text of the opinion, which includes a 90-page dissent (!) by Justice Stevens, can be found here. A blog post with links to lots of coverage can be found here. And this blog, written by a terrific election law expert at Loyola LA, is worth checking out.

Questions, questions, questions

A leading indicator of the clarity of my classroom presentation is the number of student questions that ensue. And yesterday's class prompted many, many questions. So I apologize if yesterday's class left you in the dark.

Sort of. Of course, this material is pretty complicated, and there is no way to present the interesting nuances without leaving you a little bit confused, at least at first exposure. You deserve much more than a dumbed-down, two-dimensional oversimplification -- a reduction of real-life complexity into (supposedly, but inaccurately) clear, black-letter rules. Law, and certainly constitutional law, is not so simple.

Indeed, the skill of dealing with such complexity is why people are willing to pay lawyers. This is largely the point of legal education: to give you an opportunity to learn, in a relatively safe environment, how to sort out much of this confusion for yourselves. It is not confusion for the sake of confusion. But your clients will not be presenting you with tidy hypotheticals match up on all fours with cases you have already encountered. Not to put too fine a point on it, but law school classes that were nothing more than glorified bar review courses -- a litany of specific rules for you to plug into your outlines and memorize -- would be useless.

So, with those prefatory remarks out of the way, I will endeavor to answer the many questions in my in-box, as best I can, and as soon as I can. I love the questions; please keep them coming. But try to disabuse yourself of the notion that there are very specific, clear "rules" that you are to supposed to "take away" from each class.

Here goes:

QUESTION: Were we basically suppossed to take away today the idea that the Constitution can be read in various ways and depending on how you interpret the words of the Constitution, then a decision can be made in both directions for something being constitutional or unconstitutional? For instance, in terms of the power of the Supreme Court and its power of judicial review, one reading of its power can be that they have the final say on constitutional issues, and another reading can be that it is just one department that has a say?

ANSWER: This is generally true, and it is specifically true as to the breadth of judicial review. But I would add three points. (1) Some interpretations of the Constitution are better than others, as an objective matter. I do not subscribe to the radical deconstructionist belief that language is completely indeterminate. (2) I think we have tended, over time, towards the judicial supremacy view; the Court's interpretations of the Constitution, at least in practice, appear to bind the other branches, except in the rare circumstances in which it directly conflicts with a central political objective of the governing party (or President). And the reason, I believe, is that we as a society are generally more comfortable with judicial supremacy. (3) Isn't this true of all of your classes? Isn't tort law also quite indeterminate? I don't think the meaning of "proximate cause" is any clearer than the breadth and depth of the Supreme Court's power of judicial review.

QUESTION: Is there no final say on whether the President can question the ruling of a Supreme Court decision that the Court deems Constitutional, like the Jackson example? What happens when the President goes against a Supreme Court decision, just because the Court interprets the Constitution a different way? Or in the Dickerson case, what gave the Supreme Court the right to say that its constitutional rule stated in Miranda was any more constitutional then the enacted Congressional statue? They both just had different interpretations. Where is the checks and balance system?

ANSWER: I do not think there are any clear answers to any of these questions, at least as a matter of formal logic. But we do have some idea of what has actually happened when these events have occurred in real life. As to Dickerson, the answer, I guess, is that Congress, the President, the police, and the People of the United States seem to have accepted the Court's understanding of its role and the specific holding that Miranda warnings must be given. The same was true of Jackson's bank veto. Congress was unable to re-enact a bank bill or overturn Jackson's veto. And the People re-elected Jackson, and not long after his veto.

QUESTION: Congress can not "except," from the Suprme Court constitutional issues, or take away from the Supreme Court's original jurisdiction, but it can "except," the Court's appellate jurisdiction in other matters of the law, such as they did with habeas corpus. Is this correct?

ANSWER: I think McCardle is pretty ambiguous on these points. Surely Congress can make some exceptions to the Court's appellate jurisdiction on constitutional questions. That is precisely what it did in McCardle itself, which the court upheld. But what Congress did not do is completely foreclose any avenue for McCardle (or persons like McCardle) from appealing their constitutional claims to the Supreme Court. This is what the Court notes in the last paragraph. If Congress had done so, would the repealing act have been unconstitutional? I don't think McCardle answers that question. My own view is that Congress probably has the authority to except some issues (including constitutional issues) from Supreme Court review. (I believe this in part because the Judiciary Act of 1789 did so, and that Congress probably had some idea what the Exceptions Clause was intended to permit). But the precise scope of this power remains unclear.

QUESTION: Further, is an "exception," okay as long as it leaves open at least one avenue to get to the Supreme Court? It seems that that is what the Court is saying in McCardle -- that because McCardle could have invoked the jurisdiction provided under the Judiciary Act of 1789, or gone through state court appellate process, that the repealing act was okay. What would happen if Congres took away all appellate jurisdiction to the Supreme Court, both through federal courts and State courts? Would this be constitutional, or does it depend on one's reading of the Constiution?

ANSWER: Again, I think it is unclear. My own view is that Congress, at least through a "neutral" looking statute (such as one concerning the amount in controversy in a civil suit) would be a permissible exception to completely close off Supreme Court review. But I do not think we have an airtight, clear answer to this question under current law.

Thursday, January 14, 2010

A postscript for Marbury

One last point that I forgot to mention about Marbury that is worth noting, lest we come away with an inaccurate understanding of the Supreme Court's power to exercise judicial review. One week after the Court handed down Marbury, it issued an opinion in Stuart v. Laird. At issue there was the Constitutionality of the Repeal Act, the statute in which the Jeffersonian Republicans had repealed the Circuit Courts Act and eliminated the sixteen court of appeals judgships (even though Article III seems to grant federal judges life tenure). The practical stakes in Stuart were much higher than they were in Marbury; sixteen federal court of appeals judgships are more important than four positions as magistrate for the District of Columbia. Moreover, Stuart did not present the Court with any nifty escape hatch akin to the one Marshall found (created?) in Marbury.

Rather predictably, then, the Court in Stuart v. Laird upheld the Repeal Act, even though Marshall surely believed that the Act was unconstitutional. He realized that a ruling that the Act was unconstitutional would have been ignored and defied by the Jefferson administration. In the face of superior power, he laid down the Court's arms.

Thus, the significance of Marbury and the real power of judicial review should not be exaggerated. At the end of the day, there are very real, practical constraints on the Court's power, regardless of its authority on paper to declare any act--legislative or executive, state or federal--unconstitutional. Marshall knew this well. He took what he could and saved the Court's prestige for fights in the future.

Supreme Court blocks broadcast of Prop 8 trial

Late yesterday, the Supreme Court issued a 17-page opinion blocking the broadcast of the trial proceedings in the lawsuit seeking to declare California's Proposition 8 unconstitutional. You can find the ruling here. Four justices -- Stevens, Breyer, Ginsburg, and Sotomayor -- dissented. The Court did not rule more broadly on whether, and under what circumstances, federal trial proceedings can be broadcast. Rather, it found that the specific procedure for permitting such broadcast had not been followed by the district court in this instance. As the per curiam opinion states in its first paragraph, "the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves."

Is the very predictable, 5-4 ideological split on this rather minor, procedural point a preview of how the Court will ultimately rule on the merits if and when the case gets there? I think there is reason to think it is. But that is still probably years away, so who knows?

Monday, January 11, 2010

An important point about Marbury

As we will discuss in class Wednesday, a very important procedural point in Marbury v. Madison is that Marbury filed his suit directly in the Supreme Court, as an "original action." ("Original" because the suit originated in the Supreme Court itself.) As a result, the extent of the Supreme Court's jurisdiction to hear original actions is critical to resolving the case, at least as the legal issues were framed by the Court. And this original jurisdiction is addressed in the Constitution in Article III, section 2, clause 2.
When you examine that clause, you will see that it makes reference to "Ambassadors [and] other public Ministers and Consuls." Today, we might well think of the Secretary of State, the defendant in Marbury, as a "public minister." But the meaning in Article III is narrower than it would be in modern parlance: it refers specifically to representatives of foreign governments. Thus, as everyone agreed at the time, Secretary of State James Madison was not a "public minister" for purposes of Article III.
This point is important to following Chief Justice Marshall's reasoning in Marbury. I intended to mention it at the end of class but forgot.

Opinions tomorrow and Wednesday

The Supreme Court has announced that it will hand down opinions both tomorrow (Tuesday) and Wednesday. It seems likely that the Court will decide Citizens United v. FEC, the case involving federal laws limiting campaign spending (specifically, in this case, "Hillary, the Movie").

Citizens United
is the case that the Court held over from last Term and was reargued in September. If oral argument is any indication, the justices appear poised to invalidate a raft of restrictions on campaign spending by corporations and labor unions, ushering in a whole new (some have termed "gilded") era in campaign finance.

Thus far, the Court has only handed down four opinions in cases argued this Term.

Thursday, January 7, 2010

Spring 2010

Welcome to all of the students enrolled in my Constitutional Law course for spring semester, 2010. I will be using this blog during the semester to supplement our discussions in class -- to answer lingering questions, to clarify points, to comment on current events, and to provide more thorough explanations than our time in class sometimes provides.

For today, let me point you to an interesting article appearing in the current edition of the New Yorker: a lengthy story by Lauren Collins on the newest Supreme Court justice, Sonia Sotomayor.