Author Archive

Supreme Court Still Split

Posted by Ilya Shapiro

Those who just days ago were proclaiming a new “era of good feelings” on the Court have been definitively proven wrong. Indeed, the last two weeks have seen more 5-4 divisions than the entire rest of the year to that point. While we have seen more unanimous rulings and fewer narrow splits than last term — when a full third of the cases came out 5-4 — this is clearly a function of the vagaries of the docket and not any shift in ideologies, judicial philosophies, or voting strategies. True, the Court under Chief Justice Roberts’ direction has increased the portion of business cases (typically more technical and therefore less divisive), but still the constitutional cases that catch the public’s eye — relating to social issues, civil rights, and national security — divide the Court on predictable lines. While this is in some senses unfortunate — we would prefer the highest court in the land to speak with one voice in resolving the nation’s deepest disputes — it is better for five justices to hold to their constitutional duty to say what the law is than to have nine produce a lukewarm opinion that either splits the baby or, worse, legislates from the bench. All in all it was a pretty good term for those concerned with upholding constitutional rights and limiting governmental powers (as well as reining in lawsuit abuse), but a sanguine consensus remains a pipe dream.

Supreme Court Crack-Up (and Down with Punitive Damages)

Posted by Ilya Shapiro

Certain commentators are noting the relative dearth of 5-4 decisions this term after a full third of last year’s cases were decided by that narrowest of margins (with Justice Kennedy in the majority in all of them).  That’s a bit premature, however, as already the last ten days have produced more 5-4 cases than the term leading up to them.  Tomorrow — with the contentious issues of energy deregulation, campaign finance, and, of course, the D.C. gun ban — will no doubt have even more.  They always leave the close cases for the end, folks, and none of today’s four cases were anywhere near unanimous. The two decisions that got all the attention, of course, were Kennedy v. Louisiana (capital child rape) and Exxon v. Baker (punitive damages from the Valdez spill).

I won’t say much about Kennedy, other than that, as he has so, so many times in the past, Justice Kennedy again shamelessly substituted his own policy preferences for the will of the people.  Regardless of one’s views on whether certain types of crimes short of murder (aggravated rape, child rape, treason, etc., etc.) warrant the death penalty, this is an issue properly left to the people and their elected representatives in state legislatures.  We do not pick nine (left alone five) black-robed lawyers to be our moral arbiters, philosopher-kings, or bureaucrats-in chief.  Kennedy versus Louisiana indeed!

As for Exxon, here we have the curious situation on the Court splitting 4-4 (Justice Alito having recused himself for owning Exxon stock) on the question of whether maritime law — the Court was only reviewing issues of federal maritime not constitutional law — permits punitive damages for the acts of agents.  This means that, on that issue, the Ninth Circuit’s opinion is summarily affirmed (without setting Supreme Court precedent), a terrible result because the Courts of Appeal are themselves split.  The Court went on, nevertheless and I think properly, by a 5-3 vote to vacate the $2.5 billion punitive damages award because, under maritime common law, punitives should be limited to the amount of compensatory damages (here $507.5 million).  The trial lawyers, as expected, are upset (about losing 80 percent of their contingency fee).  For further comment both on the issue of deadlock-producing recusals and punitive damages, I’ll save pixels here and refer you to my podcast. [Editor: Subscribe already!]

And again, stay tuned tomorrow for D.C. v. Heller (guns, for which my colleague Bob Levy is co-counsel and in which Cato filed an amicus brief), Davis v. FEC (campaign finance, in which we also have a brief), and Morgan Stanley v. Public Utility No.1 (electricity contracts).  The way the opinions have come down, smart money is on Scalia writing Heller (majority or plurarity) and Alito writing Davis.  Note that all three cases were long ago selected for inclusion in this year’s Cato Supreme Court Review.

No News Is No News

Posted by Ilya Shapiro

The Court did not issue Heller today, which means it will do so Wednesday (or Thursday if, as expected, it does not get through its 7 remaining opinions on Wednesday).  The encouraging news from today is that Heller is the only opinion outstanding from the cases argued in March, and Justice Scalia is the only justice who has not yet written a majority opinion from that sitting.  That’s no guarantee, but the smart money is he will be the author.

The discouraging news from today is that the Court denied cert in Baylor v. United States, a federalism case in which Cato filed an amicus brief.  Briefly, we supported a pizza-shop robber who was prosecuted not in state court for, say, robbery, but in federal court for ”interfering with interstate commerce” and therefore violating the ”Hobbs Act” (a 1946 anti-racketeering law).  The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria got its flour, sauce, and cheese from various states outside Ohio.  We argued that prosecuting robberies that have such an attenuated effect on interstate commerce destroys the line between the states’ power to punish violent crime and Congress’s power to regulate interstate markets.

Also not decided today were Davis v. FEC, the “millionaires’ amendment” campaign finance case in which we also filed a brief, and Exxon v. Baker, where $1.5 billion in punitive damages is at stake over a super-technical application of maritime law.

Supreme Court Stands Up for Free Speech in California

Posted by Ilya Shapiro

Today, by a vote of 7-2, the Supreme Court overturned a California statute that prohibited employers from speaking out on issues relating to unions and labor policy.  The restriction even applied to the payment of salaries, speaking about unions to employees working on state contracts, and meeting with employees on state property to discuss union-related issues.  The statute, passed after intense lobbying by the AFL-CIO, applied to any employers who received over $10,000 in state program funds – including everything from MediCal reimbursements to payments for building roads and schools.  The only significant exceptions all relate to employer speech favoring union activity.

Cato filed a brief supporting the petitioners in this case — the Chamber of Commerce and a group of small business owners — to argue that 1) the case should be decided on labor law grounds because the National Labor Relations Act (NLRA) clearly prohibits state regulations of this kind; but 2) if the Supreme Court reached the First Amendment issue that the Ninth Circuit took it upon itself to decide (and decide erroneously), the statute should be struck down because it imposes an unconstitutional condition on the receipt of state funds and burdens private speech in an area unrelated to the programs for which the funds are given.  In the end, the Supreme Court correctly decided the case on NLRA preemption grounds — that California intruded on an area that is properly left to Congress’s authority –  noting its own 1976 determination that Congress had left unionization activities to be “controlled by the free play of market forces.”  As Justice Stevens aptly stated, California’s statute acted to regulate within “a zone protected and reserved for market freedom” and thus had to be struck down.

Lawyers Write Laws to Protect Lawyers… I’m Shocked!

Posted by Ilya Shapiro

As my colleague Tim Lynch, product of Marquette Law School, can attest, graduates of Wisconsin law schools become members of that state’s bar without having to take an exam.  Understandably, out-of-staters (or even Wisconsonians who go elsewhere for law school and then want to return home) might be jealous.  Now a federal judge has granted class status to a group of law school graduates who have earned law degrees outside Wisconsin and want the same right as in-state grads to practice in the state without passing a bar exam.  (The judge also dismissed the suit as moot because the plaintiff had since passed the bar exam, but apparently this plaintiff has since added his wife and another recent law grad and hopes to take another bite at that apple.)

Wisconsin’s policy is obviously little more than a bit of protectionism meant to give its two law schools (Marquette and UW) a competitive advantage over regional rivals (or to retain, at the margins, Wisconsonians who might be tempted to go to other schools which they perceive as better or which offer them scholarships).  But it may not be unconstitutional, at least not on the grounds the suit alleges — as a violation of Congress’s exclusive power to regulate inter-state commerce (state-specific bar rules are unlike the state-specific railroad gauges — which the Supreme Court has ruled to be unconstitutional on Commerce Clause grounds — because each state has its own substantive and procedural laws).  Indeed, it is easy for Wisconsin to argue that its schools are the only ones that specifically teach its laws.  Similarly, though many states allow experienced (typically five years) lawyers to waive into their bar, others (including — surprise, surprise – all major retirement destinations: HI, CA, AZ, TX, FL) require exams of all comers, even, say, a former Supreme Court justice. 

A better argument to counteract all this nonsense can probably be made on equal protection grounds — on which the Supreme Court struck down citizenship requirements in 1973 — but even those formulations have failed in the context of, e.g., state bars that exclude non-permanent resident aliens (there goes my dream of practicing in New Orleans).  In any event, I suspect that, at least in the Wisconsin case, a court would apply “rational basis” review and, for the reasons stated above, find for the state.

A free market solution would, of course, eliminate all the bar membership requirements for legal practice, giving clients the option to hire moderately trained non-lawyers — at cheaper rates! — for relatively simple matters such as simple wills, small claims litigation, uncontested divorces, etc.  Much as lawyers can now advertise which law school they graduated from, the “real” lawyers would be able to say that they’d passed the bar, had their “character and fitness” reviewed by a committee, tried x number of cases, and other indicia that would distinguish them from hucksters selling the legal equivalent of snake oil.

But What About the Children?

Posted by Ilya Shapiro

Sometimes the Supreme Court makes news for the cases it doesn’t take, not just the opinions it produces in cases it hears.  Today marked one such occasion, when the Court denied cert in Dupuy v. McEwen, in which Cato filed an amicus brief.

For more than a decade, the Illinois Department of Child and Family Services has investigated parents based on anonymous tips of abuse or neglect, and deemed them “indicated” after a cursory investigation by state officials who have no effective check on their unilateral authority. Unlike actual child abuse cases, in which the State removes children from abusive situations with judicial approval, the State takes a different route with “indicated” parents – threatening them with what it calls a “Safety Plan.” In so doing, the State demands that parents abandon their homes and families pending an investigation of unlimited duration. Frequently State officials will threaten to remove children immediately into foster care if the parents do not “consent” to the plans without counsel and without negotiation. According to the Seventh Circuit, parents are not allowed to challenge the plans in a judicial or administrative forum if they “consent” to the State’s demands, even if they do so only after being threatened with the loss of their children. Our brief, which supported the class of parents petitioning the Supreme Court for review of these practices, argued that these “Safety Plans” violate the Due Process Clause because they infringe on fundamental family rights without affording any opportunity to challenge state action. They also vest unfettered discretion in state officials to infringe on parents’ fundamental rights. Finally, they represent an unconstitutional condition that forces parents to make an agonizing choice between abandoning their children in the hope that the State’s vague concerns would be mollified by subsequent investigation, or taking the risk that the State would make good on its threat to remove their children into foster care without a hearing.

We had some hope on this case — as did SCOTUSblog — because the Court had asked Illinois to respond to the cert petition (immediately after receiving our amicus brief I should add!), and also because SCOTUSblog had picked it as “one to watch,” but it was not to be. It’s not a tremendously surprising outcome given the tangled procedural history underlying the case — making it a less than ideal vehicle for presenting these issues — but still a disappointing result for parents, children, and freedom from state coercion.

Truth is Stranger Than Fiction Even in Hollywood

Posted by Ilya Shapiro

The LA Times yesterday revealed that Chief Judge Alex Kozinski of the Ninth Circuit, one of the highest-profile jurists this side of the Supreme Court, has stored various sorts of pornography (to put it mildly) on a publicly accessible website featuring sexually explicit photos and videos.  (The site is now down.)  Kozinski conceded in the LAT interview that some of the material was inappropriate, but defended other sexually explicit content as “funny.”  The story came out because — from the department of “you can’t make this up” — Kozinski was slated to preside over the obscenity trial of a filmmaker whose movies featured, among other things, bestiality and defecation.

Kozinski, who is a staunch defender of the First Amendment and generally a great friend of liberty, was assigned the case as part of a rotation in which he and other appellate judges occasionally “sit by designation” in the lower courts.  With the revelation of the judge’s own stash of materials that arguably parallel the defendant’s, we already hear demands that Kozinski recuse himself from this particular case.  Setting aside the merits of obscenity law and jurisprudence or even judging, as it were, Kozinski’s behavior, a reasonable argument can be made for recusal simply because the high-profile nature of the case, combined with the high-profile nature of this strange episode, can easily lead to an appearance of impropriety.  Heck, Supreme Court justices recuse themselves for much less — such as holding small amounts of stock in large corporations that would benefit from a given ruling.  (Then again, they also refuse to recuse themselves for what could be called more, like when Justice Scalia went duck-hunting with Vice President Cheney while a case involving the latter was pending before the Court.)

But that is where this should stop.  While Kozinski surely showed questionable judgment (and/or technological ineptitude — equally surprising given the judge’s penchant for video games and scholarly writings on intellectual property) in not keeping his collection of pictures and videos private, his performance on the bench has been nothing short of exemplary.  While Kozinski’s libertarian instincts at times flummox liberals and conservatives alike, and his colorful personality and writing style are unusual if not welcome in the often staid legal world, the man is a judge’s judge.

Because Kozinski typically shares Cato’s constitutional leanings (with a notable exception on the Fifth Amendment’s Takings Clause), I wrote about him here and here, after he took over the chief judge’s gavel in December of last year.  I concluded my articles thus:

Kozinski’s personal style may rub some of his colleagues the wrong way, but just maybe the court as a whole — so long derided as being out of step with the rest of the country — will, in better reflecting its new chief’s quirks, fall into line.

I clearly wasn’t talking about the sorts of quirks that we now see, but perhaps nothing should surprise us about those who practice law (or sit on the bench) in what many call the “Ninth Circus.”  Regardless of where this episode ends, it is a bizarre turn of events.

“Dog Bites Man” Passes for Legal News These Days

Posted by Ilya Shapiro

“The Supreme Court this week made big news because it hardly changed the law at all,” reports The Washington Post. “The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself.”  The story goes on to quote part of this press release that I wrote yesterday:

The Gómez-Pérez and Humphries rulings reinforce what should be readily apparent to objective Court-watchers: The Roberts Court is neither necessarily “pro-business” nor “conservative.” Instead, the Court evaluates the legal merits of each case and rules accordingly. Even where the Chief Justice disagreed with his colleagues (and notably with an opinion written by Justice Alito), in the Gómez-Pérez case, the disagreement was a technical one over statutory language and structure — and not anything that involves judicial philosophy or competing theories of constitutional interpretation. The most interesting thing to note from these cases is the difference in the justices’ views of stare decisis, the principle that the Court places heavy weight on its own precedent. Whereas Chief Justice Roberts and Justice Alito (and perhaps others) no doubt disagreed with the precedent upon which the Humphries decision relied, they went along with Justice Breyer’s reasoning that such disagreement over statutory interpretation does not justify overturning precedent. Justices Scalia and Thomas, on the other hand, consider that the risk to legal stability from overturning precedent to be less than the harm from perpetuating the earlier error. Whatever the significance of this difference of opinion, it is not an ideological dispute.

Perhaps more importantly, as I (and apparently others) said to this reporter over the phone, Roberts and Alito are likely to be more accommodating of incorrect but established precedent when they pertain to statutory interpretation rather than constitutional rights.  This is because Congress can always itself “overrule” an erroneous body of statutory construction by passing a new law — but of course the Court has the final word on constitutional issues (barring a constitutional amendment).

More generally, though, the above analysis, relating as it does to technical statutory construction that only reinforces existing law, would not normally be front-page (or, in this case, page A2) news.  The nature of the cases to which the Roberts Court grants review, however — more technical, business issues instead of red-meat “culture war” stuff — suggests that we could be in for more “dog bites man” stories in future.

Campaign Finance Reform Meets Kurt Vonnegut

Posted by Ilya Shapiro

This morning, as Pennsylvania Democrats went to the polls in the last large primary before their nominating convention, the Supreme Court heard the latest challenge to the McCain-Feingold campaign finance law: Davis v. FEC, in which Cato filed an amicus brief, questions the “Millionaires’ Amendment,” which attempts to discourage candidates for election to Congress from spending more than $350,000 from their own personal funds. It penalizes campaign spending above that threshold by enhacing the political speech of the self-financing candidate’s opponent through increased contribution limits and unlimited coordinated party expenditures. This penalty unconstitutionally chills candidates from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest that the Supreme Court has recognized. The penalty doesn’t even prevent the “corruption” that was the rationale for McCain-Feingold, because there is no threat of quid pro quo from a candidates’s expenditure of her own funds. And the Court has expressly rejected “leveling the playing field” of financial resources as an interest sufficient to justofy the infringement of First Amendment rights. Ultimately, the “Millionaires’ Amendment” is nothing more than an incumbency protection mechanism designed by Congress for its own benefit.

Based on this morning’s argument, I think the Court will issue a narrow decision striking down the Millionaires’ Amendment based on the disclosure burden, with separate concurrences on broader First Amendment grounds. The most interesting questioning, not unexpectedly, came from Justice Scalia, who, evoked the reductio ad absurdum of the “leveling” provision (which reminded me of the old Vonnegut story about equality run amock, Harrison Bergeron): “What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth?”

Note: John Samples and I visited Capitol Hill yesterday to give a public briefing on the law and policy of self-funded campaigns.