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.

Kozinski on Privacy at Constitution Day is a post from Cato @ Liberty - Cato Institute Blog

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.

California’s Water-Liu is a post from Cato @ Liberty - Cato Institute Blog

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.

Wal-Mart v. Dukes: The Court Gets One Right is a post from Cato @ Liberty - Cato Institute Blog

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.

Shooting for State Sovereignty is a post from Cato @ Liberty - Cato Institute Blog

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.

UPDATE: Liu Cloture Fails is a post from Cato @ Liberty - Cato Institute Blog

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!

If You Liked Obamacare, You’ll Love Goodwin Liu is a post from Cato @ Liberty - Cato Institute Blog

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!

Supreme Court Rules That Arbitration Provisions Should Be Enforced is a post from Cato @ Liberty - Cato Institute Blog

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.

Arizona Immigration Decision Underlines Need for Fundamental Reform is a post from Cato @ Liberty - Cato Institute Blog

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.

Supreme Court Accepts Another Chance to Reverse Ninth Circuit, Uphold First Amendment is a post from Cato @ Liberty - Cato Institute Blog

“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).

Regulator, Leave Those Kids Alone is a post from Cato @ Liberty - Cato Institute Blog

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.

Taxpayer Choice + Parental Choice = Good, Constitutional Education Reform is a post from Cato @ Liberty - Cato Institute Blog

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.

Agency Will Stop Treating Political Speech as Fair-Housing Violation is a post from Cato @ Liberty - Cato Institute Blog

The SCOTUS Blog reports this morning that the United States Supreme Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the Arizona k-12 scholarship tax credit case. This is great news, and paves the way for the Court to ultimately overturn the 9th Circuit’s credulity-straining legal misadventure.

For the details, see the Cato brief in this case, which was joined by the American Federation for Children and Foundation for Educational Choice.

Supreme Court Will Hear Appeal of School Choice Case is a post from Cato @ Liberty - Cato Institute Blog

The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.

Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case. 

Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.

If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.

The Ninth Circuit as a Denial of Service Attack on American Justice is a post from Cato @ Liberty - Cato Institute Blog

Friend-of-Cato and 2010 Milton Friedman Prize Dinner keynote speaker George Will published an excellent column today about a case under review at the Supreme Court, Arizona Christian School Tuition Organization v. Winn:

The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools — including religious schools. Yes, here we go again.

The question — if a question that has been redundantly answered remains a real question — is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.

If this case hadn’t originated in a state within the Ninth Circuit’s jurisdiction, nobody would have heard about it because any other federal appellate court would probably have decided it correctly. Will correctly and convincingly argues for summary reversal — as our friends at the Institute for Justice, who represent the petitioners, request — because the Ninth Circuit’s decision ignores clear Supreme Court precedent allowing parents to choose how to direct state funds for their children’s education (to a sectarian school or otherwise):

So, [Chief Justice William] Rehnquist wrote [in 2002], public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval . . . on any particular religion, or on religion generally.” These standards had been developed in various prior cases.  

Cato filed a brief in this case that I previously blogged about.  And you can listen to Will’s Friedman Dinner address here.  (Unrelatedly, if you still haven’t read his masterful Men at Work: The Craft of Baseball – which has sold many more copies than any of his political books — pick up the re-issued twentieth anniversary edition.)

Supreme Court Should Call Out Ninth Circuit in Education Case is a post from Cato @ Liberty - Cato Institute Blog

The Ninth Circuit has issued its long-awaited en banc decision in Dukes v. Wal-Mart, a pathbreaking class action seeking relief from Wal-Mart for alleged gender discrimination on behalf of somewhere between 500,000 and 1.5 million women. The upshot: a 6-5 partial affirmance of one of the most questionable class certification approvals in recent memory.

The case is sparking considerable commentary: see here, here, and here, for starters. Cataloguing all the myriad questionable parts of the 135+ page decision, which range from the standard for admitting expert testimony in support of certification, to the permissibility of so-called “issue classes,” to due process restraints on award of class-wide punitive damages, would take a blog post rivaling the length of the Ninth Circuit’s own monster-of-an-opinion.

Here, though, are a few problems that pop out on first reading.

First, the Ninth Circuit’s certification decision depends on an exceedingly questionable understanding of federal civil rights law. As Richard Nagareda has written, the case is premised on “a bold, new conception of prohibited discrimination under Title VII – a notion that the scholarly literature encapsulates in the term ‘structural discrimination.’” The idea is that a corporation can violate federal antidiscrimination laws by structuring the workplace in a way that enables unconscious discrimination by frontline managers.

Wal-Mart is said to have engaged in this sort of scheme because it permits its managers to engage in highly subjective decision-making about pay and promotion, rather than imposing uniform objective criteria. In effect, the idea is that Wal-Mart’s laissez faire approach to personnel management masks a conscious effort to use its managers, and their unconscious biases, as a conduit for the company’s own unstated policy of gender discrimination.

As Nagareda points out, the theory of structural discrimination “has enjoyed a run in academic discourse out of line with its meager acceptance as a matter of actual doctrine.” Indeed, as he notes, “one broadly shared starting point in the literature” is that structural discrimination is not consistent with current law. Yet, the viability of this suit turns on this theory. And the trial court and the original Ninth Circuit panel in turn authorized a class without ever squarely deciding whether Title VII does, in fact, embrace this theory.

The en banc panel appears to make some (meager) effort to rectify this problem. But its elliptical treatment of the structural discrimination theory, spanning a couple of paragraphs buried deep in the belly of the mammoth opinion, is ephemeral—a far cry from Nagareda’s suggestion that the panel first “resolve the meaning of the statute squarely and forthrightly” before undertaking class certification analysis. One senses the often-reversed Ninth Circuit, fearful of the Roberts Court peering over its shoulder, is trying to bury the lede.

Second, a more technical problem: the en banc decision exacerbates an already troublesome circuit split over the conditions for approving a class under Rule 23(b)(2). This is a popular vehicle for class actions among plaintiffs’ lawyers for two reasons: first, assuming a class qualifies for treatment under it, class members are not entitled to an automatic right to exit the class (or “opt out”) and, second, Rule 23(b)(2), in addition, imposes less stringent requirements for class certification. In their advisory notes, the drafters of the federal class action rule suggest a class qualifies for treatment under Rule 23(b)(2) if injunctive relief “predominates” over monetary relief. And one might think that in a suit, such as this, seeking massive punitive damages on behalf of an veritable army of women, certification under Rule 23(b)(2) is therefore obviously inappropriate. But rather than squarely so hold, the Ninth Circuit now stakes out an entirely new, multi-factored balancing test for determining when injunctive or monetary relief predominates—creating a three-way circuit split about the meaning of Rule 23(b)(2)’s predominance test.

Another more fundamental problem: The text and structure of the Civil Rights Act also strongly suggest that in suits seeking backpay and punitive damages, defendants must have a chance to present affirmative, individualized evidence, on a case by case basis, rebutting claims they have discriminated. In addition, the Supreme Court’s due process cases also strongly suggest punitive damages should be awarded based on an individualized determination of fault. Yet, although the ultimate trial plan remains in flux, the en banc panel greenlights jettisoning the defendant’s right to present this kind of affirmative, individualized, case-by-case rebuttal evidence. It has done so, of course, in the service of facilitating the class action: if a case-by-case opportunity to affirmatively rebut discrimination is mandated by Congress, or the Fifth Amendment, in hundreds of thousands of suits seeking back pay and punitive damages, its hard to avoid concluding that those claims predominate over the request for injunctive relief, disqualifying them from Rule 23(b)(2) treatment even under the Ninth Circuit’s new “third way” test . . . . and raising serious concerns about whether the claims for monetary relief are certifiable at all.

Class action practice is, alas, one area where the Supreme Court has been, largely, AWOL. The result—an ever-lengthening array of circuit splits on key questions that affect when a class action can be green-lighted. Dukes—a decision chock full of questionable, boundary-pushing decisions—is the inevitable result. Some suggest Supreme Court review of this decision is close to a sure thing. Let’s hope that’s right.

The Ninth Circuit’s Controversial New Class Action Decision is a post from Cato @ Liberty - Cato Institute Blog

Senate debate on the health care reconciliation bill forced Democrats to postpone yesterday’s hearing for Goodwin Liu, President Obama’s controversial nominee to the Ninth Circuit (which covers the western states).  Senate Judiciary Committee chairman Patrick Leahy accused Republicans of “exploiting parliamentary tactics and Senate Rules” — GOP senators have stopped consenting to afternoon hearings for the duration of the health care debate – to delay Liu’s appointment “at the expense of American justice.”

Nothing could be farther from the truth.  Despite the postponement, Liu’s confirmation is proceeding at breakneck speed.  His hearing was scheduled only 28 days after his nomination, while the average Obama appointee waited 48 days for a hearing and the average Bush appointee waited 135 days.  And Senate Democrats themselves cancelled all hearings Tuesday afternoon so they could attend the ObamaCare signing ceremony at the White House.

Moreover, Leahy’s intent is not so much to urge the timely vetting of judicial nominees, but to further the government’s Blitzkrieg takeover of civil society – before the Democrats’ congressional majorities turn into pumpkins this November.  As Liu stated in a January interview with NPR, “now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”

According to Liu, that progressive vision includes constitutional rights to health care, education, housing, and welfare payments.  Liu states outright that “rights to government assistance” are “essential to liberty.”  He defends this contradiction by claiming that “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.”

Liu’s hearing before the Senate Judiciary Committee thus concerns much more than a seat on a federal appellate court (just when you thought the Ninth Circuit couldn’t get more radical).  The Washington Post has noted that the hearing might serve as a test of Goodwin Liu as a Supreme Court nominee.  With so much potentially at stake, postponing Liu’s hearing to ensure it receives the Senate’s undivided attention — and any other legal method of stopping or delaying by even one day his ascension to the bench — serves “American justice” rather than betraying it.

Ramming Through Radical Nominee Takes Back Seat to Ramming Through Obamacare is a post from Cato @ Liberty - Cato Institute Blog

Today the Senate Judiciary Committee will hold a hearing for the nomination of 39-year-old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.

Yesterday Cato legal associate Evan Turgeon and I published an op-ed on the Liu nomination in the Daily Caller.  Here are some highlights:

While Liu purports to develop an original approach [to constitutional interpretation], his nuanced methodology fails to generate a novel result. He may “suggest a more cautious and discriminating judicial role than one that is guided by a comprehensive moral theory,” but it is impossible to imagine a case in which Liu would reach a different outcome than a judge employing the (disfavored) “Living Constitution” analysis. And this is not surprising, given that the stated purpose of Liu’s scholarship is to establish legal justifications for “rights” foreign to the Enlightenment tradition on which our republic rests — those that make demands on others (unlike, say, the right to free speech, which makes no demands on anyone).

…Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one-way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation” — to borrow progressive Yale law professor Bruce Ackerman’s phrase — that cannot be undone.

As a member of the ACLU and chairman of the American Constitution Society, it is no secret what kind of rights Liu would find justified by “collective values.” Liu lists “education, shelter, subsistence, health care and the like, or to the money these things cost” as examples of affirmative rights he would seek to establish in law — to constitutionalize beyond a future legislature’s reach.

Read the whole thing.  Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog.  (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)

And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:

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.

As Evan and I wrote:

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.”

The Senate needs to understand who it’s dealing with here.

If You Think Obamacare Is Bad… is a post from Cato @ Liberty - Cato Institute Blog

One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.

The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.

The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.

Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.

It will be interesting to see what the next year brings for the Second Amendment.

One Year After Heller is a post from Cato @ Liberty - Cato Institute Blog

A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees.  (H/T SCOTUSBlog)

The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured.  The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.

This presents a split in federal circuit rulings on the State Secrets Privilege.  The Fourth Circuit held that the Privilege could bar a civil suit entirely.  This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds.  “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”

As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability.  All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.

State Secrets Case Proceeds is a post from Cato @ Liberty - Cato Institute Blog