Justice Scalia Reads Cato’s Amicus Briefs
During Wednesday’s oral argument in Golan v. Holder (transcript here), Justice Scalia said something that was at once obvious and startling:
It seems to me Congress either had the power to do this under the Copyright Clause or it didn’t. I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government.
This proposition is obvious, because the Constitution vests Congress with limited, enumerated powers, which can only be increased by constitutional amendment, not by treaty. But Scalia’s words were also startling because Justice Oliver Wendell Holmes said exactly the opposite almost a century ago—or at least that’s how his opinion has been read—in the canonical case of Missouri v. Holland. We filed a brief arguing that Holmes was wrong, and we are delighted that Justice Scalia agrees.
Thanks to Tim Lee for pointing out this exchange to me before I had a chance to read the transcript and to Georgetown’s Nick Rosenkranz, the principal author of our brief.
Thomas Stays the Course, Scalia Returns to the Fold
A bit lost in last week’s legal news regarding a majority of states now suing over Obamacare, the House voting to repeal Obamacare, and the anniversary of Citizens United, was the first interesting Supreme Court decision of the term. Most notably, Justices Scalia and Thomas continued their valiant struggle to limit the scope of the constitutional misnomer that is “substantive due process” doctrine.
The case was NASA v. Nelson, a suit challenging the background checks for perspective NASA contractors as violating an evanescent constitutional right to informational privacy. The Court ruled unanimously against the challengers, with Justice Alito writing for the majority that, regardless whether such a right exists, it was not violated by the government’s probing questions on sexual history and mental health.
Justices Scalia and Thomas rightly found problems with this essentially useless ruling. Scalia, joined by Thomas, concurred in the result but wrote separately to say that if a right doesn’t exist then the Court should just say so. He would have simply held that there is no constitutional right to “informational privacy”:
I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law…. And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States…. To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.
In the course of his typically entertaining opinion we see Scalia back to his old self, caustically lambasting the “infinitely plastic concept of ‘substantive’ due process” and suggesting that it is “past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.”
More on Property Rights (Plus Privileges, Immunities, Due Process)
Yesterday I blogged about the Florida property rights case, which I now consider the best unanimous opinion against my position I could ever imagine. Although the property owners lost, four justices stood for the idea that courts no less than legislatures or executive bodies are capable of violating the Takings Clause (Fifth Amendment), while two others endorsed remedying such violations via Substantive Due Process (Fourteenth Amendment), and the remaining two didn’t express an opinion one way or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David Bernstein.
An interesting side note involves Justice Scalia’s excoriation of Substantive Due Process (and Justice Kennedy’s use of it):
Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular.
…
The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise.
Scalia also calls Kennedy’s method “Orwellian” — after having said that Justice Breyer uses a “Queen-of-Hearts” approach “reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?” Really, this is classic Scalia, a delight to read (and you should, here).
Mixed Result in Complicated Property Rights Case
Today the Supreme Court came down with its ruling in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a case I previously blogged about here and here, and in which Cato filed a brief.
While the Court’s 8-0 ruling against the Florida oceanfront (now ocean-view) property owners was not the result we wanted, the part of the decision that was unanimously unfortunate turned on a narrow and probably mistaken interpretation of state property law. Much more importantly, the remainder of Justice Scalia’s opinion makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind. “If a legislature or a court declares that what was once an established right of private property no longer exists,” Scalia writes for a four-justice plurality, “it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” And the test for whether the government—any part of it—has committed a taking turns on “whether the property right allegedly taken was established.”
Moreover, that the Court ultimately found no taking here should provide no succor to courts and other state actors who wish to abuse property rights in the future. The case could have easily swung the other way in a non-oceanfront circumstance or under a different state’s laws. Indeed, two justices (Kennedy and Sotomayor) said that federal courts can still police judicial takings—under a different name—by using the Fourteenth Amendment’s Due Process Clause, while the remaining two (Breyer and Ginsburg) decided to leave the question for another day. Nobody accepted outright the idea that courts cannot be held accountable for subverting property rights!
In short, state courts are now on notice that they violate long-held property rights at their peril.
Crocodile Tears? Liberals Lament Lack of Their Own on the Court
An interesting narrative has arisen among some on the left that the nomination of Elena Kagan shows what chumps Democratic presidents are. That is, not only could President Obama have tapped a stronger “progressive” voice, but he – like President Clinton before him, and unlike Republican presidents – put avoiding political fights ahead of moving the Court left. Since LBJ, Democrats have opted for a “moderate technocrat” like Stephen Breyer rather than a “lion” like William Brennan or Thurgood Marshall. (Sonia Sotomayor was good and necessary for identity politics, the argument continues, but, let’s face it, she’s no liberal Scalia.)
Take this opening quote from a New York Times article that came out the day of the nominee’s announcement: “The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base.” Or Dahlia Lithwick’s op-ed in Slate about how liberal law students are so many lost sheep because their ideological heroes are deemed unconfirmable and therefore not part of the nomination discussion.
Well. A few things on this: First, even if the argument were true, it’s simply not statistically significant because we’re only talking four Democratic appointments (Breyer and Ruth Bader Ginsburg by Clinton, Sotomayor and Kagan by Obama; poor Jimmy Carter had none, the same number George W. Bush would have had had he not been re-elected). Second, if you line up the Republican and Democratic nominees in recent decades, it’s conservatives who are disappointed (need I even mention John Paul Stevens, Anthony Kennedy, and David Souter, let alone Earl Warren and Brennan himself, all Republican nominees). Third, to say that someone like Ginsburg — a push-the-envelope feminist and ACLU lawyer — is a moderate is to center the jurisprudential spectrum around the law faculty lounge. And fourth, as David Bernstein details, it is people like Richard Epstein — and other Federalist Society regulars like Dan Troy, Miguel Estrada, John Eastman, Frank Easterbrook, Stephen Bainbridge, and Todd Zywicki (as well as Cato’s own Roger Pilon, Randy Barnett, and Ilya Somin) — who would be considered filibusteringly beyond the pale, much more than Lithwick’s vaunted American Constitution Society stalwarts.
In short, if anything it is Republicans who can rightfully be disappointed in their presidents’ nominees — though Kennedy’s seat was of course originally to have been filled by Robert Bork. More unfortunately, it is libertarian law students who can lament that their kind lacks representation on the High Court — though note that the second choice for Kennedy’s seat was Douglas Ginsburg (the last judicial martyr of the drug war). And so, as the Court remains securely to the left of the American people, just today ratifying radical assertions of federal legislative and judicial power, Elena Kagan is poised to fit right into that jurisprudential “mainstream.” Good for the left, bad for the Constitution.
Scalia Can No Longer Call Himself an Originalist
As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago. This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).
It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation — and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.
Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy. Here’s a choice excerpt:
Without the Privileges or Immunities Clause … the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment!
Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.
In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”
Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise). A liberty-seeking world turns its weary eyes to Justice Clarence Thomas — who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create — to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.
Likely Supreme Court Tie Would Be a Loss to Property Owners
Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).
Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had — exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property. After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.
As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”
I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat. That is, Justice Stevens recused himself — he owns beachfront property in a different part of Florida that is subject to the same renourishment program — and the other eight justices are likely to split evenly. And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.
By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here). Justice Alito was fairly quiet but is probably in the same category as the Chief Justice. Justice Thomas was typically silent but can be counted on to support property rights. With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote. Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.
For more analysis of the argument, see SCOTUSblog. Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.
Due Process Case to be Decided on Procedural Grounds
Yesterday I went to the Supreme Court to watch the argument in Alvarez v. Smith, a case about civil forfeiture in which Cato filed an amicus brief.
Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various of legal and policy issues — from property rights to due process. The question in Alvarez is the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.
Illinois’ forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for “good cause.” The six plaintiffs in Alvarez — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney.
Cato’s brief, joined by the Goldwater Institute and Reason Foundation, supports the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation’s leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State’s comparison of the time limits in CAFRA with those in its own law is misleading.
Unfortunately, though some justices appeared at argument inclined to rule that at least some prompt process was due — many other states require that the police quickly come before a judge to make a showing equivalent to the one necessary to get a search warrant — several seemed to want to avoid the due process question for another day because Alvarez was procedurally flawed, so to speak. That is, Justice Scalia pointed that none of the six plaintiffs have a live claim any more – three have had their cars returned, two defaulted on their claims, and the State reached agreement with one – so the case was “moot.” And Justice Stevens noted that the appellate court left it to the trial court to determine the details of the hearing to which the plaintiffs were entitled. (Of course, if the latter “problem” ends up being the key to the case, the Court will simply dismiss the appeal and let the Seventh Circuit’s ruling stand, which is good news — but only for people in Illinois, Indiana, and Wisconsin.)
For more on the case, see George Mason law professor and Cato adjunct scholar Ilya Somin’s oped, and his related blog post at the Volokh Conspiracy.
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