Tag: Supreme Court

The Ninth Circuit as a Denial of Service Attack on American Justice

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.

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.

Comstock & Health Care Litigation

Some will immediately claim that today’s decision in United States v. Comstock bodes ill to pending challenges to the individual health insurance mandate, but this would be a mistake.  It is one thing to uphold as “necessary and proper” a law confining sexual predators who were already incarcerated pursuant to the enumerated powers of Congress.  It is quite another to impose a mandate on every citizen of the United States as necessary and proper to its power “to regulate commerce … among the several states.”  The justices who sided with the government today cannot all be counted on to uphold the unprecedented claim of federal power to require that all persons engage in economic activity.

Supreme Court Further Reduces Constitutional Limits on Federal Power

As Roger has just blogged, the Supreme Court in today’s Comstock decision has ”turned an instrumental power, dependent on Congress’s other powers, into an independent power.”  That is, Justice Breyer’s decision has imbued the Necessary and Proper Clause – which merely gives Congress the power to enact laws that are “necessary and proper” for “carrying into execution” one of the powers enumerated in Article I, section 8 – with independent authority to justify federal power.  Thus, in effect, Congress has the power to do anything it deems “necessary and proper” (or, indeed “convenient or useful”), quite apart from whether that thing relates to an enumerated power or not.  I explained here why this view – and Breyer’s elaboration on it during oral argument – is wrong.

Without exaggeration, the Comstock decision is one of the most harmful Supreme Court decisions in recent memory.  If there is anything worse than the Court’s radical expansion of the Necessary and Proper Clause, it is that seven justices signed onto this sweeping pronouncement.  While it isn’t surprising that Justice Breyer, joined by his “progressive” colleagues, would have such an expansive view of federal power, it is disconcerting that Chief Justice Roberts joined the majority opinion in its entirety.  And while Justice Kennedy separately counsels that “the Constitution does require the invalidation of congressional attempts to extend federal power in some instances,” it’s hard to see what those instances are in the wake of Comstock.  Justice Alito also has some qualms about the reach of the Necessary and Proper Clause but unfortunately is left satisfied that here “there is a substantial link to Congress’ constitutional powers” (adding yet another exception that swallows the constitutional rule on limited congressional power).

Only Justice Thomas, whose magisterial dissent is joined by Justice Scalia, sees today’s decision for what it is, the transformation of the Necessary and Proper Clause into a sort of federal police power, the existence of which the Court has long denied.  As Thomas says, ”the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”  (This is of course counter not only the Court majority but also the immortal words of President George W. Bush that “when somebody hurts, government has got to move.”)

About the only good thing about this opinion is that it declined to expand Congress’s power under the Commerce Clause – an alternative justification for the law at issue that the government offered unsuccessfully in the court below and which Solicitor General Elena Kagan abandoned before the Supreme Court.

For more coverage of Comstock, see Josh Blackman’s series of posts and Randy Barnett at the Volokh Conspiracy.  Also, here is Cato’s brief on the case (which I summarize here) and my description of Kagan’s response to some of the points we raised.

U.S. v. Comstock Is About Policy Over Law

In his opinion today in United States v. Comstock, Justice Breyer gives us a textbook example of how the Supreme Court, over the years, has converted the Constitution into modern “constitutional law,” which is connected to the Constitution only occasionally. This is policy trumping law, pure and simple.

The question before the Court was whether Congress had the power, under the Constitution, to commit mentally ill, sexually dangerous prisoners beyond the date they would otherwise be released. The problem, as Breyer grants, is that Congress has only certain enumerated powers, and the only power it has to criminalize conduct, beyond the three crimes mentioned in the Constitution, is pursuant to one of those enumerated powers – in particular, through the last of its 18 enumerated powers, its power to enact laws that are “necessary and proper” for “carrying into execution” one of the previous 17 enumerated powers or ends. In other words, Congress can criminalize conduct only if doing so is necessary and proper for carrying out one of its other constitutionally authorized powers. 

Under its power to regulate interstate commerce, however, Congress has criminalized all manner of conduct not remotely related to insuring a free national market, the main function of the commerce power. The conduct criminalized here is the possession of child pornography. That’s a responsibility that belongs to the states, under state police power, not to the federal government. And that’s where today’s problem began.

But Breyer has compounded it by holding that even though the Constitution nowhere grants Congress the power to criminalize the conduct in question, Congress can invoke its instrumental power under the Necessary and Proper Clause to commit these prisoners beyond the date they would otherwise be released. In other words, he has turned an instrumental power, dependent on Congress’s other powers, into an independent power. That’s how government expands beyond the limits imposed by the Constitution.

Ask Kagan about ObamaCare

Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law.  If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides.

Though the Solicitor General deals with appellate matters, it is certainly possible that Kagan was consulted during the drafting of the law or the administration’s legal strategy for defending it.

The Senate Democrats who drafted ObamaCare took pains to protect it from a constitutional challenge.  The law contains several pages of findings designed to show that the Constitution’s commerce clause authorizes Congress to force Americans to purchase health insurance.  It would have been prudent for Senate Democrats to ask the government’s top appellate lawyer, who belongs to the same political party, whether they had done all they could to protect the “individual mandate” from a constitutional challenge.

Opponents began filing legal challenges to ObamaCare just minutes after President Obama signed it into law, and seven weeks before he announced Kagan’s nomination.  On Tuesday, the Obama administration filed its first response, to a private lawsuit.  According to the Associated Press, that filing “is to be followed in coming weeks and months by federal government court responses to lawsuits filed by many states.”  Regarding the case filed by 13 (soon to be 20) state attorneys general, The New York Times reports, “Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.”  It is not certain, but it is certainly possible that the Office of the Solicitor General was consulted on the government’s response to lawsuits that would likely reach the Supreme Court.

If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.  Supporters and opponents alike should be interested to know whether the Court will judge ObamaCare with nine justices on the bench, or eight.

On the Right to Discriminate

In his post this morning, “Kagan on Military Recruitment,” Cato adjunct scholar Mark Moller touches on Cato’s 2005 amicus brief in Rumsfeld v. FAIR, which he co-authored when he was with us as editor-and-chief of the Cato Supreme Court Review – a duty he performed splendidly before moving off to the legal academy. In mentioning the brief, however, Mark says that he recalls that the position it took was controversial within Cato, that it might still be, and that Cato’s legal shop might take a different view were the case presented today.

I don’t recall that the position we took was controversial within Cato, but then it was five years ago, memories fade, and much has happened in the meantime, including the filing of a brief just three months ago that nicely complements the earlier position we took. In Rumsfeld v. Fair we argued that the government could not condition a private university’s eligibility for federal grants, as the Solomon Amendment did, on the university’s giving up one of its rights, namely, its right to freedom of association. The law school plaintiffs, citing the military’s “Don’t ask, don’t tell” policy, sought to exclude military recruiters from campus. Pursuant to their nondiscrimination policies, that is, the law schools sought to discriminate against those they thought to be wrongly discriminating. In our brief we took no position on the policy Congress had set for the military (that question was not before the Court), nor on the rights of public universities in this matter – nor did we address the question whether Congress, under its raise-and-support-armies power, could directly order schools to admit recruiters, as the Court ultimately held.

Well we now have the public school version of that issue before us, and the Court, in Christian Legal Society v. Martinez. And our brief in this case, written by Cato adjunct scholar Richard Epstein, argues that a public law school – Hastings, in this case – cannot condition the receipt of benefits it extends to all other student groups on CLS’s giving up its right to freedom of association. CLS, a private student group, excludes nonbelievers from its membership, which is its right. As a public institution, we argue, Hastings must treat all equally.

Thus, the principle in the two cases is the same. Private parties, pursuant to their right to freedom of association, may discriminate, whether we agree with their grounds for doing so or not. Public institutions, which belong to all of us, may not discriminate except on grounds narrowly tailored to their functions. Unfortunately, in numerous respects, that’s not our current law. For more, see here.