Kozinski on Privacy at Constitution Day
The Hon. Alex Kozinski gave the annual B. Kenneth Simon lecture at Cato’s Constitution Day conference on September 15, 2011. He spoke about changing cultural expectations of privacy regarding new technologies and how judicial applications of the Fourth Amendment have changed over time to reflect these expectations. Judge Kozinski is the Chief Judge on the U.S. Court of Appeals for the Ninth Circuit.
California’s Water-Liu
Over the last year and a half, I’ve blogged many times about Berkeley law professor Goodwin Liu, the controversial nominee to the Ninth Circuit, the federal appellate court with jurisdiction over the western states and territories. Here’s an op-ed I published in the wake of that nomination — which happened to coincide with Obamacare’s enactment. And here’s a taste of what I wrote when Republicans filibustered Liu, which ultimately led him to withdraw:
I’m not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general . . . but if ever there were an “extraordinary circumstance” fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.
As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights — not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required.
Well, today Liu finally reached the bench, being confirmed to the California Supreme Court. This is an unfortunate development for the citizens of California, to be sure, but, as I tweeted earlier today, at least Liu’s damage will be limited to that irredeemable state.
Of course, a state supreme court justice may be an attractive choice for appointment to the U.S. Supreme Court, particularly given that we haven’t had a state jurist appointed since President Reagan tapped Sandra Day O’Connor in 1981. And Liu would be the first Asian-American on the highest court in the land, which could further tempt Barack Obama or a future Democratic president to select him. Such are the stakes for every presidential election until the 40-year-old Liu is deemed too old for elevation.
Wal-Mart v. Dukes: The Court Gets One Right
In today’s decision in Wal-Mart v. Dukes, the Supreme Court unanimously found that the Ninth Circuit had jumped the gun in certifying what would have been one of the largest class actions in history, a job-bias action against the giant retailer on behalf of female employees. A five-justice majority led by Justice Scalia found that the plaintiffs had clearly not met the requirements needed to have the case certified for class treatment; four dissenters led by Justice Ginsburg would have sent the case back for more consideration.
While some press commentary simplistically treated this case as a “Which Side Are You On” parable of workplace sexism, both the majority and the dissent spend much time grappling with more lawyerly issues specific to class actions as a procedural format, such as the exact role of “common questions,” whose implications will inevitably be felt in litigation far removed from the employment discrimination context. To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever — to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair — bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.
Because both class action law and employment discrimination law are in the end creatures of federal statute, the elected branches will have the last word. Advocates of expansive employment litigation can be expected to introduce legislation in Congress to overturn key elements of today’s decision, a strategy that has worked well for them in the past on issues like back pay, “disparate-impact” law and the scope of coverage of the Americans with Disabilities Act (ADA). While we will soon be hearing a drumbeat to that effect, Congress should resist it, because the majority’s opinion today is to be preferred as a matter of policy, fairness, and liberty.
In particular — to take just one of the policy issues in employment law brought to center stage by today’s case — plaintiffs seek to establish that Wal-Mart’s policy of decentralized manager discretion over pay and promotions is itself an unlawful practice because (they argue) it allows too wide a scope for (unconscious or otherwise) bias on the part of store managers, notwithstanding the company’s adoption of overall policies banning sex bias. The majority led by Scalia marveled that Wal-Mart’s corporate non-policy — that is, its decision not to micromanage its local executives on personnel choices — would wind up being legally interpreted as amounting to an affirmative centralized decision to discriminate. But it’s not — and we should be glad lawyers at every big company aren’t yet insisting that every local HR decision be sent to a distant headquarters for fear of liability.
Shooting for State Sovereignty
On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.
The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.
The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.
Our brief argues that federal preemption would violate the “letter and spirit of the Constitution” and that heightened judicial scrutiny is required whenever the federal government invokes an implied power to override state sovereignty. The MFFA should not be preempted because: (1) principles of state sovereignty limit federal power; (2) preemption would violate the federalism framework established in National League of Cities v. Usery; and (3) preemption would not allow state sovereignty to serve its role as a proper check of federal power. The Supreme Court has made clear that Congress is not the sole venue for states and individuals to seek protection from federal overreach and so this case is fundamentally a dispute over federalism—which should allow for state regulation of local matters to flourish in concert with federal power over “truly national” concerns.
Allowing preemption here would have the perverse effect of allowing the federal government to regulate “states as states” while impairing states’ ability to operate in areas of traditional governmental functions. The Ninth Circuit should thus find that district court committed reversible error in dismissing the lawsuit and, as a result, MSSA should be allowed to pursue its case beyond the pleadings stage.
The Ninth Circuit will hear the case of Montana Sports Shooting Association v. Holder in late summer or early fall.
UPDATE: Liu Cloture Fails
This morning I outlined the stakes of today’s seminal cloture vote on Goodwin’s Liu’s nomination to the Ninth Circuit. Well, now we have a result: cloture failed 52-43, with Senator Ben Nelson (D-NE) joining all voting Republicans except Lisa Murkowski (R-AK) against cloture. Three Republicans plus Max Baucus (D-MT) were absent, while Orrin Hatch (R-UT) voted present because of his previous strong position against filibusters.
This is the first judicial nominee filibustered since the Gang of 14 brokered an agreement on President Bush’s nominees in 2005, forestalling then-Senate Majority Leader Bill Frist’s use of the so-called nuclear option (changing Senate rules to eliminate the judicial filibuster). That agreement, to the extent it’s even still valid given the changed composition of the Senate (and with five of the 14 Gang members no longer in the Senate), allowed filibusters only in “extraordinary circumstances,” leaving that term undefined.
And so we may have just have witnessed the re-ignition of the war over judicial nominees. Stay tuned as to whether today’s vote will come to signify the “Water-Liu”—h/t Walter Olson—for one party or another, or for our judiciary.
If You Liked Obamacare, You’ll Love Goodwin Liu
Later today the Senate is set for a “cloture” vote — the vote to end debate, for which you need 60 votes — on the nomination of Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. I’m not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general — or if the Republicans ought to be the first to foreswear the tactic even without a guarantee that Democrats would do likewise in the future — but if ever there were an “extraordinary circumstance” fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.
As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights — not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required. That is, someone ought to be able to sue the government (qua the taxpayer) if they don’t have adequate health care, or food, or shelter, or… well, anything Liu envisions is part of his indeterminate Constitution whose evolving norms adapt to the times “in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.”
As Liu wrote in the Yale Law Journal in 2006:
On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.
Moreover, he’s opined that words like “free enterprise,” “private ownership of property,” and “limited government” are “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.”
As I wrote in an op-ed with Evan Turgeon last year:
We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.
Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”
Now, if all 53 Democratic senators vote for cloture, they will need to add seven Republicans to prevail. So the key to this vote are the 11 GOP senators who voted for cloture earlier this month on controversial Rhode Island district court nominee Jack McConnell: Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune. This list includes some of the more ”squishy” Republicans, to be sure, but there are also some wild cards — and, of course, the stakes with a circuit court nominee are higher than for a district court nominee.
The outcome of the vote is uncertain but one thing I can say for sure is that if Prof. Liu becomes Judge Liu (and later, God forbid, Justice Liu), the Obamacare litigation will seem so quaint: Can Congress force you to buy health insurance? Heck, the Constitution requires you to buy it — for yourself and a lot of others as well!
Supreme Court Rules That Arbitration Provisions Should Be Enforced
A few readers have now asked me about the “libertarian” reaction to yesterday’s Supreme Court ruling that allows companies to use boilerplate contract provisions that require consumers to arbitrate any disputes individually rather than coming together as a class action for arbitration purposes (let alone being able to bring claims into court). That is, where an individual claim isn’t worth that much money (about $30 in yesterday’s case of AT&T Mobility v. Concepcion), no lawyer will take the case and so only by having a class file collectively, the argument goes, will justice be served.
The ruling broke down 5-4 on “conventional” lines, with an opinion by Justice Scalia, joined by the Chief Justice and Justices Kennedy, Thomas, and Alito, holding that the Federal Arbitration Act trumped (“preempted” by operation of the Constitution’s Supremacy Clause) California law that was more favorable to the plaintiffs. Justice Thomas also filed a concurrence, noting that “state public policy against arbitration” is not enough to revoke a contract with an arbitration agreement. Justice Breyer dissented, joined by Justices Ginsberg, Sotomayor, and Kagan, arguing that certain class action waivers are unenforceable.
Here’s some more background (edited from a useful summary I received in a Heritage Foundation email): A cellular telephone contract between the parties provided for arbitration of all disputes, but did not permit classwide arbitration. After the Concepcions were charged sales tax on the retail value of phones provided for free under their service contact, they sued AT&T, and their suit was consolidated with a class action alleging false advertising and fraud. The district court denied AT&T’s motion to compel arbitration. The Ninth Circuit affirmed, reasoning that the Federal Arbitration Act, which makes arbitration agreements valid and enforceable except on such grounds as exist to revoke any contract, did not require arbitration because the prohibition on classwide proceedings was “unconscionable” under California law. The Supreme Court reversed, stating that arbitration agreements must be placed on equal footing with other contracts and California’s rule was preempted by the FAA and its strong federal policy favoring informal arbitration.
I’ll leave it to my colleagues Walter Olson, our expert on civil litigation, and Roger Pilon, who has written and spoken extensively on preemption, to comment on the particulars of the opinion if they wish. What I will say generally is that (1) we at Cato take the enforceability of contracts quite seriously, but (2) preemption is a very technical area of law that has to be examined on a case-by-case, statutory-provision-by-statutory-provision basis. See, for example, this Cato Supreme Court Review article from a few years ago, and also the relevant section of last year’s “Looking Ahead” essay that presciently previewed the Concepcion case (kudos to Erik Jaffe!). Finally, Roger will be writing an article piece on this term’s preemption cases for the next Review — but you’ll have to wait till Constitution Day in September for that!
Arizona Immigration Decision Underlines Need for Fundamental Reform
The legal battle over SB 1070 is far from over, so neither side should cheer or despair. The upshot of the Ninth Circuit’s splintered and highly technical opinion is merely that the district court did not abuse its discretion in enjoining four provisions. The court could not and did not rule on the legislation’s ultimate constitutionality and, of course, SB 1070’s remaining provisions—the ten that weren’t challenged and the two on which Judge Bolton rejected the government’s argument—remain in effect.
But the legal machinations are only half the story. While I personally think that all or almost all of the Arizona law is constitutional, at least as written (abuses in application are always possible), it’s bad policy because it harms the state’s economy and misallocates law enforcement resources. But I also understand the frustration of many state governments, whose citizens are demanding relief from a broken immigration system that Congress has repeatedly failed to fix. Whether it’s stronger enforcement (Arizona) or liberalizing work permits (Utah), states should not be forced into the position of having to enact their own piecemeal immigration solutions while living within a system where the regulation of immigration is a federal responsibility. Congress has dropped the ball in not passing comprehensive immigration reform, despite facing a system that doesn’t work for anyone: not big business or small business, not rich Americans or poor ones, not skilled would-be immigrants or unskilled.
The federalism our Constitution establishes sometimes demands that the federal government act on certain issues. This is such a time and immigration is such an issue.
Supreme Court Accepts Another Chance to Reverse Ninth Circuit, Uphold First Amendment
Today, the Supreme Court agreed to review McComish v. Bennett (consolidated with Arizona Free Enterprise v. Bennett), which challenges Arizona’s public financing of elections as an unconstitutional abridgment of speech. Because the case concerns a crucial new battleground in the fight between free speech and “fair” (read: government-controlled) elections, Cato filed an amicus brief supporting the cert petitions filed by our friends at Goldwater Institute and the Institute for Justice.
McComish centers on Arizona’s “Clean Elections” Act, which provides matching funds to publicly funded candidates if their privately funded opponent spends above certain limits. In other words, by ensuring that his speech will not go “unmatched” by his opponent, the privately funded candidate is penalized for working too hard and speaking too much. The law violates established Supreme Court precedents that have consistently held that forcing a speaker to “disseminate hostile views” as a consequence of speaking abridges the freedom of speech. Although the Ninth Circuit upheld the Arizona law, the Second Circuit recently struck down a similar Connecticut law, thus creating a circuit split that undoubtedly encouraged the Court to take the case.
In 2008 the Court decided Davis v. FEC (in which Cato also filed a brief), which overturned the “millionaires amendment” to the McCain-Feingold campaign finance “reform.” That provision gave similar assurances to candidates faced with the possibility of being outspent by their opponent. There, however, the concern was with rich, self-funded candidates: The act provided increased fundraising limits — triple the amount normally allowed — for candidates whose opponents spent too much (by the government’s judgment) of their own money on their campaign. The Davis Court held that this provision “impose[d] an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right.”
The Arizona law is even worse. It doesn’t even delve into the messiness of fundraising — tripling the contribution limit does not, after all, mean that those funds will be raised — but rather guarantees that a candidate’s “robus[t] exercise[] of [his] First Amendment right” will be met with contrary speech from his opponent. And the law sweeps still broader: it applies the same matching funds provision to groups that spend independently from any campaign but are nevertheless deemed to be supporting a given candidate. Such “uncoordinated speech” by third parties — speech that, many times, the candidate does not want even if it is thought to be on his behalf — also triggers matching funds for the candidate’s opponent.
The end result, as extensive evidence shows, is that numerous speakers — from the candidate to the independent groups — will be reluctant to spend money to speak (which is, of course, required for nearly all effective campaign speech) because their opponents are guaranteed the funds needed to reply. In elections, where the freedom of speech “has its fullest and most urgent application,” such laws simply cannot fly.
Finally, it is also worth remembering what is at stake when we allow politicians to pass laws that determine the very rules by which they hold their jobs. Justice Scalia put this most poignantly in Austin v. Michigan Chamber of Commerce: “the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.” As we now well know, the Court overruled Austin this past January in Citizens United, vindicating Scalia’s pro-free speech position.
It will be exciting to see how McComish unfolds. Expect another Cato amicus brief early in the new year, oral arguments in the spring, and a decision by the end of June.
Regulator, Leave Those Kids Alone
“These kids today and their violent [blank]….” This refrain has been around for as long as there have been kids – and elders to shake their fists at them. In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. In the 1950s, for example, psychologist Fredric Wertham’s attack on comic books – in his bluntly titled book Seduction of the Innocent – so ignited the national ire that Congress held hearings on the cartoon menace. In response, the comic book industry voluntarily adopted a ratings system. Similarly, backlash against the movie industry and the music industry (e.g., Tipper Gore’s attack on gangsta rap) caused those respective industries to also adopt voluntary ratings systems.
The videogame industry also adopted an effective and responsive ratings system after congressional hearings in the early ’90s. Thinking this ratings system ineffective, however, California passed a violent videogame law, which prohibits minors from purchasing games that are deemed “deviant,” “patently offensive,” and lacking in artistic or literary merit. The gaming industry challenged the California law and the Ninth Circuit struck it down on First Amendment grounds.
California now seeks to overturn the lower court’s ruling by arguing that violent videogames deserve an exemption from First Amendment protection. Cato’s brief supports the videogame manufacturers and highlights not only the oft-repeated and oft-overblown stories of the “seduction of the innocent,” but the less-repeated stories of the effectiveness and preferability of industry self-regulation.
We show that not only does self-regulation avoid touchy First Amendment issues but that entertainment industries take self-regulation very seriously. Moreover, evidence from the Federal Trade Commission shows that the existing videogame ratings system works more effectively than any other regulatory method. Adding a level of governmental control, even if were constitutional, would be counterproductive.
The case of Schwarzenegger v. Entertainment Merchants Association will be argued November 2 (coincidentally election day).
Taxpayer Choice + Parental Choice = Good, Constitutional Education Reform
Arizona grants income tax credits for contributions made to school tuition organizations (“STOs”). STOs must use these donations for scholarships that allow students to attend private schools. This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend. Still, several taxpayers filed a lawsuit challenging the program as creating a state establishment of religion.
Although the Ninth Circuit acknowledged that increasing educational opportunities is a valid secular purpose for a legislative act, it found that the tax credit program nonetheless violates the Establishment Clause because many of the STOs—as it happens, a decreasing majority—provide scholarships for students to attend parochial schools. Earlier this year, Cato filed a brief supporting the request for Supreme Court review filed by the various parties defending the program. The Court granted cert.
Now Cato (led by Andrew Coulson and myself) has filed another brief, joined by four education reform groups, urging the Supreme Court to overturn the Ninth Circuit’s decision because it was based on faulty reasoning: It equated the private and voluntary choices of individuals who donate to religious STOs with state sponsorship of religion. The lower court also made the dubious assertion that Arizona parents feel pressured to accept scholarships to religious schools, in spite of the fact that the share of STO scholarships available for use at secular schools is almost twice as large as the share of families actually choosing secular schools. Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster.
We urge the Court to reaffirm its longstanding jurisprudence—especially the 2002 school-choice case, Zelman v. Simmons-Harris—whereby instances of “genuine and independent choice” are insulated from Establishment Clause challenge. Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it. More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled.
The case of Arizona Christian School Tuition Organization v. Winn will be heard by the Court this fall, probably in November.
Agency Will Stop Treating Political Speech as Fair-Housing Violation
The California Department of Fair Employment and Housing has agreed to stop investigating citizens on the theory that their political expression in and of itself constitutes a potential violation of laws against housing discrimination. The concession came in a settlement with Julie Waltz, whom it had dragged through an investigation for publicly opposing the placement of subsidized group homes in and near her Norco, Calif. residence. A news release from the Center for Individual Rights:
During the year-long investigation, state investigators told Waltz that her speech violated state fair housing laws, requested that she refrain from her speech activities, and threatened her with prosecution. An investigator also told her that the investigation would end if she removed signs from her yard objecting to the next-door group home as well as signs posted by other people in her neighborhood. Waltz declined to remove the signs. …
Waltz was represented by the Los Angeles, CA firm of Munger, Tolles & Olson LLP, which donated its time pro bono and the Center for Individual Rights.
When it comes to trampling the First Amendment, California fair housing officials are serial offenders: in 2000 and again in 2006, CIR says, the Ninth Circuit handed down rulings restraining them from similar practices.
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