Latest Cato Research on Supreme Court en Ilya Shapiro participates in the debate, “Congress vs. Courts: An Article I Debate | Spotlight on Freedom,” hosted by FreedomWorks Fri, 07 Aug 2020 12:39:32 -0400 Ilya Shapiro Robert A. Levy discusses June Medical Services v. Russo and New York State Rifle & Pistol Association Inc. v. City of New York on The Bob Harden Show Wed, 05 Aug 2020 12:19:56 -0400 Robert A. Levy Josh Blackman’s Newsweek article, “A Supreme Court Divided Cannot Stand. John Roberts Must Step up or Step Off,” is cited by Mark Levin on The Blaze TV Wed, 05 Aug 2020 11:08:50 -0400 Josh Blackman William Yeatman discusses the Michael Flynn case on The Bob Harden Show Fri, 31 Jul 2020 14:09:05 -0400 William Yeatman Robert A. Levy discusses Little Sisters of the Poor v. Pennsylvania and other cases on The Bob Harden Show Wed, 29 Jul 2020 12:36:18 -0400 Robert A. Levy Josh Blackman discusses SCOTUS Justices Gorsuch and Kavanaugh on The Michael Berry Show Wed, 29 Jul 2020 11:29:22 -0400 Josh Blackman Justice Gorsuch’s Legal Philosophy Has a Precedent Problem Josh Blackman <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Justice Neil Gorsuch is a&nbsp;proud textualist. According to this approach, what Congress intended, or expected, when it passed a&nbsp;law doesn’t matter. What matters are the words printed on paper. In practice, Justice Gorsuch will strictly follow the text of statutes, no matter what result it yields. Last month, he decided that the 1964 Civil Rights Act has always prohibited LGBTQ discrimination. Everyone had simply missed it for half a&nbsp;century. And at the close of the Court’s term, he determined that an 1833 treaty between the federal government and American Indian tribes was never formally rescinded. Who knew that eastern Oklahoma has been Indian Country all along?</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In both cases, Justice Gorsuch insisted he was sticking to the text, the whole text, and nothing but the text. Alas, he wasn’t. His interpretation was shaded by the work of justices who had not been so careful about text. And in both cases, Justice Gorsuch failed to acknowledge that the Court’s precedents were inconsistent with textualism. In doing so, he inadvertently undermined textualism’s justification. One can’t profess to follow the original meaning of a&nbsp;text while in fact following precedents that ignored that meaning. Going forward, he should criticize prior decisions that failed to take text seriously, and either reluctantly follow them, or formally abandon them.</p> <p>The first of these two decisions was&nbsp;<em>Bostock v. Clayton County</em>. Here, the Court split 6–3. Justice Gorsuch wrote the majority opinion, which was joined by Chief Justice John Roberts, and the Court’s four progressives. Gorsuch parsed the text of Title VII of the Civil Rights Act of 1964. This statute made it unlawful for employers to “discriminate against” employees “because of … sex.” Justice Gorsuch did not begin his analysis by interpreting this text on a&nbsp;blank slate. Rather, he simply assumed that decades of case law had accurately interpreted the crucial phrase&nbsp;<em>discriminate against because of sex</em>. Indeed, he treated decades of precedent as part of the “law’s ordinary meaning” in 1964. This approach built an elaborate textualist framework on quicksand.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>If Justice Gorsuch wants to move the law away from nebulous, flimsy reasoning toward more textualist, neutral principles, he must account for both text and precedent </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>All nine justices agree that the Court must determine the meaning of a&nbsp;statute, regardless of whether that meaning leads to a&nbsp;policy that is unwise or unjust. In this case, my view is that the phrase “discriminate against” must inform the meaning of “because of.” In the&nbsp;<a href="" target="_blank">1960s</a>, that phrase formed a&nbsp;single linguistic unit. Recently, a&nbsp;biopic was made about the life of Ruth Bader Ginsburg. Its title,&nbsp;<em>On the Basis of Sex</em>, was an homage to the widespread understanding of what it meant to discriminate against a&nbsp;woman on the basis of sex. When these elements are combined, the phrase&nbsp;<em>discriminate against because of sex</em>&nbsp;references discrimination based on bias or prejudice about a&nbsp;person’s sex, and not discrimination based on sexual orientation or gender identity. Justice Gorsuch relied on decades of precedents that focused primarily on “because of” and not the entire clause. Doing so eliminated the requirement that some sort of bias or prejudice exists based on a&nbsp;person’s sex. In effect, he severed the statute in half, and concluded that if sex plays any role in the discrimination, the employers’ actions are unlawful. The Georgetown University law professor Randy Barnett and I&nbsp;<a href="" target="_blank">have described his approach</a>&nbsp;as “halfway textualism.” Gorsuch followed old precedents narrowing a&nbsp;small component of the statute, even when those cases are at odds with the meaning of the entire statute.</p> <p>The decision in the second case,&nbsp;<em>McGirt v. Oklahoma</em>, was split 5–4, with Justice Gorsuch joined by the four progressive justices. This case considered whether Congress had formally “disestablished” an American Indian reservation that covers half of Oklahoma. No federal law dictates what precise steps are needed to disestablish a&nbsp;reservation. Thus, textualists have no relevant statute to parse. Instead, the courts have incrementally developed a&nbsp;century of case law about how Congress can eliminate American Indian sovereignty over territory. That framework, alas, is not itself textualist. The Court has never set out some magic words that Congress must utter to wind down tribal authority. Instead, the Court’s approach considers many factors that, when viewed in context, reveal an intent to disestablish the reservation.</p> <p>Chief Justice Roberts, who dissented in&nbsp;<em>McGirt</em>, described the Court’s “well‐​settled” approach: “We determine whether Congress intended to disestablish a&nbsp;reservation by examining the relevant Acts of Congress and ‘all the [surrounding] circumstances,’ including the ‘contemporaneous and subsequent understanding of the status of the reservation.’” The Court has acknowledged that “explicit language” is not needed for a&nbsp;finding of disestablishment. Roberts explained, “The appropriate inquiry does not focus on the statutory text alone.” Without question, the Court has adopted a&nbsp;framework that favors Congress, to the detriment of the tribes. These precedents put a&nbsp;thumb on the scale of disestablishment.</p> <p>This sort of fluid approach is, no doubt, a&nbsp;bitter pill for textualists to swallow. So in&nbsp;<em>McGirt</em>, Justice Gorsuch simply spit it out. Unlike in&nbsp;<em>Bostock</em>, Justice Gorsuch refused to treat the Court’s non‐​textualist precedents concerning Indian territory as part of the “law’s ordinary meaning.” He did not approach Congress’s entire body of work as the Court has instructed. Over the course of many years, Congress diminished the tribes’ authority, and established a&nbsp;commission to bring the territory under the jurisdiction of the state of Oklahoma. But Justice Gorsuch deemed this evidence too fragmented to establish a&nbsp;unified congressional intent. Rather, he inspected individual congressional actions that concerned the territory in a&nbsp;fragmented, balkanized fashion. Unsurprisingly, Congress did not meet his novel standard for disestablishment. As a&nbsp;result, Justice Gorsuch found that Congress’s 1833 promise to the tribes had not been explicitly repealed, and remained in effect. Congress hadn’t said the magic words. And how could it? Until&nbsp;<em>McGirt</em>, no one knew the precise textual standard that was needed to disestablish a&nbsp;reservation. In this case, Justice Gorsuch’s halfway textualism has literally cut Oklahoma in half.</p> <p>Let’s put these two decisions in perspective. In&nbsp;<em>Bostock</em>, Justice Gorsuch quietly accepted precedent that paid little attention to text. In&nbsp;<em>McGirt</em>, he quietly rejected precedent that paid little attention to text. In both cases, he erected elaborate textualist structures on top of a&nbsp;foundation well worn by the Court’s prior decisions. And in neither case did he acknowledge the relationship between precedent and textualism. In doing so, I&nbsp;believe the justice erred.</p> <p>Generally, the Supreme Court will follow the doctrine known as stare decisis, which is Latin for “to stand by things decided.” (I say&nbsp;<em>generally</em>&nbsp;because justices of all stripes can always muster sufficient justification to overrule old decisions.) Textualists, particularly those of an originalist bent, have an especially tough time with stare decisis. In many instances, the text of a&nbsp;statute, or the Constitution, has a&nbsp;meaning that conflicts with the Court’s long‐​standing interpretation. Or the Court has adopted a&nbsp;method of reading a&nbsp;specific statute that requires consideration of subjective extrinsic factors, such as legislative history or policy concerns. What is a&nbsp;textualist to do? There are three general approaches.</p> <p>First, the textualist can acknowledge the conflict between text and precedent, but maintain that stare decisis compels a&nbsp;result that conflicts with textualism’s basic principles. This approach has the virtue of humility, even if it reaches the “wrong” result, at least by a&nbsp;textualist standard. Chief Justice Roberts spoke to this method in his&nbsp;<em>McGirt&nbsp;</em>dissent: “Unless the Court is prepared to overrule these [old] precedents, it should follow them.”</p> <p>Second, the textualist can overrule the non‐​textualist precedent in order to enforce the statute’s natural sense. Here, stare decisis gives way to textualism. This approach has a&nbsp;significant downside, however: It disturbs arrangements that the people and government have come to rely on. Yet at least it has the virtue of candor: The jurist can explain the&nbsp;<em>why&nbsp;</em>and&nbsp;<em>how</em>&nbsp;of a&nbsp;departure from settled law. And I&nbsp;find this sort of honesty refreshing. Justice Clarence Thomas is the member of the Court most likely to take Door No. 2. (Though in&nbsp;<em>McGirt</em>, he joined the chief justice behind Door No. 1.)</p> <p>Justice Gorsuch, however, favored Door No. 3&nbsp;in&nbsp;<em>Bostock&nbsp;</em>and&nbsp;<em>McGirt</em>. He professed to apply a&nbsp;form of unadulterated textualism. But he failed to account for contrary precedent. In&nbsp;<em>Bostock</em>, he quietly baked into his analysis decisions from the 1980s and ’90s that were hardly textualist. And in&nbsp;<em>McGirt</em>, he demanded a&nbsp;level of textual precision from Congress that had never been demanded before.</p> <p>Repeating, over and over again, that Congress can amend the statute if it disagrees with the Court’s decision is not enough. Of course it can. But this argument goes only so far. Congress has been operating under certain presumptions for decades; it thought the scope of Title VII and the boundaries of Oklahoma had been settled long ago. But Justice Gorsuch maintains that&nbsp;<em>everyone&nbsp;</em>was wrong about Title VII for five decades, and that&nbsp;<em>everyone&nbsp;</em>was wrong about eastern Oklahoma for a&nbsp;century. At least in the unique context of Indian law, the Court had established a “well‐​settled” method of reading tribal law. And this framework is itself subject to stare decisis. (The Court has treated century‐​old antitrust laws in this common‐​law fashion.) Departures from that methods are permitted, but should be addressed.</p> <p>Finally, I&nbsp;am not sanguine about the prospects for the future of textualism. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan are savvy enough to recognize the limits of&nbsp;<em>Bostock&nbsp;</em>and&nbsp;<em>McGirt</em>. The quartet recognizes full well that Gorsuch’s opinions leave enough wiggle room to avoid a&nbsp;strict textualist holding in the future. They are in no sense tied to the mast of textualism. They are free to depart as needed.</p> <p>But I&nbsp;don’t think Justice Gorsuch is trying to lock them in. Indeed, I&nbsp;have a&nbsp;newfound respect for him. In these cases, he was utterly disinterested in how his opinions would be received. He doesn’t care. There is no political calculation. There is no long game. There is no three‐​dimensional chess.&nbsp;<em>Bostock&nbsp;</em>dropped a&nbsp;<a href="" target="_blank">thermonuclear bomb on the conservative legal movement</a>, and Justice Gorsuch was&nbsp;<a href="" target="_blank">excoriated by many of his supporters who felt betrayed</a>. The first Trump appointee, no political slouch, must have anticipated that possible reaction. But he followed his principles. I&nbsp;commend his temerity.</p> <p>My disagreement, then, is methodological. Textualism, like originalism, must start from the blank slate of a&nbsp;statute, without regard to how the Court has interpreted that statute in the past. Justice Gorsuch cannot begin from the 50‐​yard line. He must start from his own end zone. In its present form, Justice Gorsuch’s textualism is far too fragmented to form a&nbsp;coherent jurisprudence. In the future, he must grapple with the interplay between stare decisis and textualism. When feasible, he should choose Door No. 2, and reject precedents that ignored textualism. If that approach is not viable, he should stay behind Door No. 1, and at least cast doubt on why that precedent is flawed, but follow it anyway. But Door No. 3&nbsp;is misleading. It preaches textualism, but practices precedentialism. This approach, in the long run, will serve only to undermine textualism. If Justice Gorsuch wants to move the law away from nebulous, flimsy reasoning toward more textualist, neutral principles, he must account for both text and precedent.</p> </div> Fri, 24 Jul 2020 12:07:44 -0400 Josh Blackman Roberts Rules Ilya Shapiro <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>This is the year it really became the Roberts Court. Chief Justice John Roberts presided over Donald Trump’s impeachment trial, which seems like a&nbsp;lifetime ago, and managed a&nbsp;series of unprecedented telephonic oral arguments — during which we learned that the justices’ teleconferences are just like ours, with flushing toilets and participants forgetting to unmute. More important for understanding the Supreme Court, Roberts was in the majority more than any of his colleagues, including in all but one of the 5–4 decisions.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>To put a&nbsp;finer point on it, Roberts was in the majority in 97% of the term’s cases, 58 of 60. The only other justice who participated in at least 50 cases in a&nbsp;term and was in the majority that much since Roberts joined the court in 2005 was Anthony Kennedy, who did it three times. Before Kennedy, the most recent justice to be in the majority that much was William Brennan in the 1968–69 term. The last chief justice to do it was Fred Vinson in 1949–50.</p> <p>Now, Roberts isn’t a&nbsp;true “swing” vote, even though in this term, he went with the liberals in 5–4 rulings twice, more than any other conservative. Instead, Roberts is the court’s “driver,” steering the institution where he wants to go. Or the “anchor” justice, as <a href="">SCOTUSblog’s Adam Feldman put it</a>, because of his tendency to vote in the court’s majority.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Roberts has gone out of his way not to rock the boat, to maintain the status quo and extricate the court from the larger political narrative. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Most notably, Roberts shocked many court‐​watchers by joining the liberals on three key cases decided at the end of June, involving gay and transgender rights ( <em>Bostock v. Clayton County</em>), immigration ( <em>DHS v. Regents of the University of California</em>), and abortion ( <em>June Medical Services v. Russo</em>). That plus Justice Neil Gorsuch’s writing the opinion in <em>Bostock </em>— it was a&nbsp;6–3 vote — set off a&nbsp;circular firing squad on the Right, as <a href="">so‐​called common‐​good constitutionalists</a> went after originalists and textualists. That outrage was tamped down a&nbsp;bit this month when the court issued three key religious‐​liberty rulings, two of them by 7–2 margins and the other an emphatic rejection of any unequal treatment of religious schools in school‐​choice programs, written by the chief justice himself.</p> <p>Moreover, when you look at the numbers, it was a&nbsp;pretty good term for conservatives. Of the thirteen 5–4 decisions, nine had the conservative justices together, and only three had a&nbsp;conservative defection. (The other was a&nbsp;quixotic copyright case with a&nbsp;heterodox alignment.) Compare that to the previous term, when there were eight 5–4 cases in which a&nbsp;conservative justice joined the liberals and only seven in which conservatives stuck together. Losses in high‐​profile cases sting, but this is by no means a&nbsp;liberal court, which is why progressives breathed sighs of relief but aren’t treating Roberts as the second coming of Anthony Kennedy, let alone David Souter.</p> <p>Roberts has gone out of his way not to rock the boat, to maintain the status quo and extricate the court from the larger political narrative. He strives mightily to defy political, and especially partisan, expectations. The chief justice is acutely aware that it’s historically unusual to have all the court’s conservatives appointed by Republican presidents and all its liberals by Democrats, but that’s where we are, at a&nbsp;time of maximum polarization and toxic public discourse. Yet the court is embattled not because it’s partisan but because it cannot be divorced from the larger political scene. Ironically, <a href="">as I&nbsp;wrote in these pages a&nbsp;year ago</a>, it’s when justices think about extra‐​legal concerns, anything beyond just getting the law right, that they act most illegitimately.</p> <p>Still, it’s precisely for such legitimacy concerns that Roberts made several important moves this term that frustrated those of us who want legal clarity, rather than to see the court muddle along. Back in April, he led the court to dismiss as moot <em>New York State Rifle and Pistol Association v. City of New York</em>, the first Second Amendment case the court had taken up in more than a&nbsp;decade. Justice Brett Kavanaugh concurred in the 6–3 decision not to decide but urged the court to “address that issue soon.” Alas, Roberts’s maneuvering apparently scared off either Justice Gorsuch or Justice Samuel Alito because six weeks later, the court lacked the four votes necessary to grant <em>any</em> of the pending Second Amendment petitions for review, over a&nbsp;dissent by Justices Kavanaugh and Clarence Thomas.</p> <p>The same day as those denials, as well as denials in a&nbsp;slew of qualified immunity cases, with Thomas also dissenting there, the court decided <em>Bostock</em>, which found that Title VII of the Civil Rights Act of 1964 protected against employment discrimination based on sexual orientation and gender identity. This was, in Gorsuch’s own terms, a&nbsp;textualist decision, interpreting “based on sex” to include those categories, rather than progressive cant about the meaning of words changing over time or finding contrived legislative history that trumped statutory text. Kavanaugh had the better of the argument in dissent, explaining that Gorsuch was being too literal and that even in 2020, we wouldn’t say that someone fired for being gay lost his or her job “based on sex.” But regardless, Roberts wasn’t the deciding vote, instead sliding over to make the court look more united and achieve a&nbsp;result that would’ve been <a href="">hugely popular</a> had it been achieved through the legislative process.</p> <p>Then, in <em>DHS v. Regents</em>, Roberts wrote an opinion saying that the Trump administration didn’t properly explain why it rescinded DACA, the Obama‐​era program that allowed people who were brought to the country illegally as children to stay and receive certain benefits. There are plenty of problems with this ruling, chief among them requiring the government to maintain a&nbsp;potentially unconstitutional program without examining whether President Barack Obama had the authority to create it in the first place. But Roberts again deferred to the political process. If Trump is reelected, he can try rescission again if Congress hasn’t fixed the problem, but otherwise, a&nbsp;<a href="">popular policy</a> remains in force.</p> <p> <em>June Medical</em> was perhaps Roberts’s most strategic, and cynical, move. Here, he joined the liberals’ invalidation of a&nbsp;Louisiana abortion regulation, but only on <em>stare decisis </em>grounds — the idea that sometimes we preserve erroneous precedent because it would be more disruptive to get it right. Roberts maintained his disagreement with a&nbsp;four‐​year‐​old case involving a&nbsp;similar Texas law <em>in which he himself dissented</em>, but felt bound by that ruling. It was an unprincipled application of a&nbsp;doctrine that didn’t stop him from overturning precedent in <em>Citizens United v. FEC </em>(2010), <em>Janus v. AFSCME </em>(2018), and <em>Knick v. Township of Scott </em>(2019), cases in which the precedent was more entrenched. It also didn’t prevent his vote in <em>Gonzales v. Carhart </em>(2007), which upheld a&nbsp;federal ban on partial‐​birth abortion seven years after the court invalidated a&nbsp;similar Nebraska ban in <em>Stenberg v. Carhart</em> (2000).</p> <p>Finally, we come to John Roberts’s finest hour, which also happened to be the term’s final hour. In <em>Trump v. Vance</em>, the court held that the president doesn’t have absolute immunity from state grand jury subpoenas seeking his financial records. In <em>Trump v. Mazars</em>, it held that Congress doesn’t have carte blanche to engage in a&nbsp;fishing expedition against the president. It was a&nbsp;split decision, but both cases ended up 7–2, with Roberts writing both majority opinions. The chief justice assembled strong coalitions for balancing state‐​federal relations and checking both the legislative and executive branches. Equally important to his own purposes, both cases will now continue in the lower courts, without a&nbsp;final resolution until after the election. Those “Trump tax” rulings hearkened to the end of the previous term, the first in the post‐​Kennedy era. The June 2019 term saw Roberts write the controlling opinions in decisions to (1) remove federal courts from policing partisan gerrymandering and (2) reject a&nbsp;question regarding citizenship for the 2020 census but allow the Commerce Department to try again in the future with a&nbsp;better rationale.</p> <p>All of these rulings show that Chief Justice Roberts is acting politically, with a&nbsp;small “p.” He’s cognizant of the political atmosphere and is thinking about how to best position his beloved court. That’s nothing new: He’s always been a&nbsp;conservative, with a&nbsp;strong belief in the judiciary’s independence, but he’s also been cautious.</p> <p>All that was evident 15&nbsp;years ago, when George W. Bush named him to replace Sandra Day O’Connor. Roberts had an underwhelming interview with Vice President Dick Cheney and senior White House officials, playing his cards close and not admitting to any overarching legal theories. Speculation was rampant that others had the edge, with movement types pulling for Michael Luttig of the 4th Circuit, who was a&nbsp;clear and unabashed judicial conservative.</p> <p>President Bush went with Roberts because of a&nbsp;gut instinct for what a&nbsp;justice was like. And then when Chief Justice William Rehnquist died, picking Roberts for chief avoided the sort of fight that would’ve attended the nomination of someone with a&nbsp;longer record of originalist jurisprudence, including the possible elevation of Justice Antonin Scalia, at a&nbsp;time when Bush was politically weakened by his Iraq policy and the government’s response to Hurricane Katrina.</p> <p>Roberts put on a&nbsp;clinic at his hearing, emphasizing his dedication to precedent and restraint, and to a&nbsp;limited role for the judiciary. Judicial “modesty” became his watchword, likening the role of a&nbsp;judge to a&nbsp;baseball umpire, to ” <a href="">call balls and strikes and not to pitch or bat</a>.” And this wasn’t some “confirmation conversion”: Memos from his time in the Reagan White House showed that he was critical of the court’s intervention in too many cases. There was speculation about Roberts’s membership in the Federalist Society, the conservative/​libertarian legal network, but he disclaimed the association. That’s telling.</p> <p>At 50&nbsp;years old, Roberts became the youngest chief justice since his hero John Marshall. It didn’t take long for a&nbsp;man who had planned for this moment seemingly all his life to settle in. And it didn’t take long for him to make his mark. To the extent that Roberts’s project is to have the court speak more with one voice, his first term saw a&nbsp;<a href="">marked increase</a> in unanimous decisions: 45%, up from a&nbsp;five‐​year average of just over 25%.</p> <p>The Roberts Court hasn’t hit that level of agreement every term — <a href="">this past term</a>, it was at only 36% — and some terms, a&nbsp;high rate of unanimity has been complemented by a&nbsp;relatively high rate of 5–4 decisions. But the statistics bear out the fact that, if you go below the culture war cases, this court is more united now than it has been since the days of FDR. Of course, those “big” cases matter, both for public confidence in the court and for the development of the law. The 2013–14 term, for example, saw a&nbsp;record two‐​thirds of the cases decided unanimously in the judgment, but many of those had strident concurrences that were dissents in all but name.</p> <p>It’s readily apparent that the chief justice has a&nbsp;conservative judicial philosophy, but it’s a&nbsp;methodological conservatism of restraint and minimalism. “If it is not necessary to decide more to a&nbsp;case, then in my view, it is necessary not to decide more to a&nbsp;case,” Roberts <a href="">explained in a&nbsp;speech</a> toward the end of his first term. “Division should not be artificially suppressed, but the rule of law benefits from a&nbsp;broader agreement.”</p> <p>Chief Justice Roberts practices what he preaches, writing fewer opinions than all of his colleagues. When he’s in dissent, someone else is typically writing that opinion, and he has <em>never</em> issued a&nbsp;solo dissent. In other words, the court will only go as far and as fast on any particular issue as the chief justice wants — and that’s typically not very far and not very fast.</p> <p>Where he has supported “big” changes in the law, those have been preceded by small moves in that direction. <em>Citizens United</em>, which threw out the restriction on using corporate and union funds for independent political speech, was preceded by several campaign finance cases rejecting justifications for various other parts of the 2002 Bipartisan Campaign Reform Act. <em>Shelby County v. Holder</em> (2013), which invalidated the “coverage formula” for determining which jurisdictions had to “preclear” their electoral rules under Section 5&nbsp;of the Voting Rights Act, was preceded by <em>Northwest Austin Municipal Utility District No. 1&nbsp;v. Holder</em> (2010), in which Roberts raised concerns about Section 5’s continued constitutional viability.</p> <p>Of course, Roberts is most famous (or infamous) for his role in upholding the Affordable Care Act, first against constitutional attack in <em>NFIB v. Sebelius</em> (2012) and then statutory attack in <em>King v. Burwell</em> (2015). In both cases, the chief justice attempted to show judicial restraint or even “modesty” by merely tweaking Congress’s work rather than invalidating it.</p> <p>Unfortunately, he failed on his own terms. As the four <em>NFIB</em> dissenters wrote, “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a&nbsp;vast judicial overreaching. It creates a&nbsp;debilitated, inoperable version of healthcare regulation that Congress did not enact and the public does not expect.” The chief’s judicial passivism, combined with the activism of the four liberal justices, who saw no judicially enforceable limits on federal power, created a&nbsp;Frankenstein’s monster. Justifying a&nbsp;mandate with an accompanying penalty for noncompliance under the taxing power doesn’t rehabilitate the statute’s constitutional abuses. And by letting Obamacare survive in such a&nbsp;dubious manner, Roberts undermined the trust people have that courts are impartial arbiters rather than political actors.</p> <p>The sad thing about that episode is that the chief didn’t have to do what he did to “save the Court.” For one thing, Obamacare was highly unpopular — particularly its individual mandate, which <a href="">even a&nbsp;majority of Democrats</a> thought was unconstitutional. For another, Roberts only damaged his own reputation by making this move after warnings from pundits and politicians that striking down the law would be “conservative judicial activism.” Had he sent Obamacare back to the drawing board, it would have been just the sort of thing for which the court needs all its accrued gravitas. Instead, we had a&nbsp;strategic decision dressed up in legal robes, judicially enacting a&nbsp;new law and feeding public cynicism.</p> <p>With Justice Kennedy’s retirement, Roberts became the first chief justice to be the median vote in half a&nbsp;century and the first to be the deciding vote since Charles Evans Hughes in the 1930s. It’s a&nbsp;very different court than what we would’ve seen had Luttig been picked instead of Roberts in 2005, whether as chief justice or with Scalia elevated and Alito in Scalia’s place. While it’s possible that Roberts might be voting differently had he become an associate justice instead of the chief, he was never a&nbsp;Scalia or Thomas to begin with. Meanwhile, anyone can judge the success of his project to depoliticize the judiciary: tacking left and right while issuing narrow decisions does nothing to address an underlying dynamic that’s driven by irreconcilable interpretive theories — and only increases the perception that the judiciary is as political a&nbsp;branch as the others.</p> <p>While Roberts now has even more incentive to indulge his minimalist fantasies and lead the court from the squishy commanding heights, he is a&nbsp;surer vote for conservatives, but maybe not libertarians, than Kennedy was. What that means in the long term only time will tell, though of course Roberts will stay in the middle of the court only if a&nbsp;Democratic president gets to replace Justices Ruth Bader Ginsburg and Stephen Breyer. If it’s President Trump making one or both of those nominations, we’ll all start talking about the Kavanaugh Court. </p> </div> Thu, 23 Jul 2020 08:28:15 -0400 Ilya Shapiro You Should Be Able to Challenge the IRS in Court Ilya Shapiro, James Knight <p>Although the Internal Revenue Service is responsible for collecting taxes, the power to write tax law is a&nbsp;legislative one, held by Congress. In certain cases, however, Congress has delegated to the IRS limited authority to fill in the gaps of tax laws through regulation. The Administrative Procedure Act (APA) lays out the processes that agencies like the IRS must follow when promulgating regulations, such as allowing for a&nbsp;period of public comment on proposed regulations. Unfortunately, the IRS has habitually refused to comply with the APA absent the intervention of the courts. The APA provides a&nbsp;remedy for such situations: pre‐​enforcement judicial review. This process allows an individual or entity to challenge the validity of a&nbsp;regulation that could affect it in court without having to first violate the regulation and risk the often severe consequences that would follow.</p> <p>CIC Services, which advises taxpayers on certain types of complex transactions, is using pre‐​enforcement judicial review to challenge the validity of an IRS reporting requirement that it claims is invalid because the IRS evaded the regulatory procedures required by the APA. In response, the IRS invoked the Tax Anti‐​Injunction Act (AIA) to block the challenge and prevent CIC’s legal arguments from even being heard.</p> <p>The AIA prohibits challenges to a&nbsp;tax before the tax has been collected. In most instances, a&nbsp;person challenging a&nbsp;tax assessment must first pay the tax and then file a&nbsp;claim for a&nbsp;refund. But CIC’s challenge is not to any tax but to the validity of the regulatory rule (and burden) passed by the IRS.</p> <p>The IRS narrowly prevailed before the U.S. Court of Appeals for the Sixth Circuit when two of the three judges on the panel held that the penalty triggered by failing to follow the new reporting requirement was itself a&nbsp;tax, thus subjecting the lawsuit to the AIA. In doing so, the court widened an existing circuit split. (Cato had filed <a href="" target="_blank">an earlier brief</a> in support of a&nbsp;petition seeking review of a&nbsp;similar D.C. Circuit case, but the Supreme Court declined to take it up). Under the Sixth Circuit’s reasoning, the only recourse against defective Treasury regulations is to purposely violate the regulation and incur penalties and interest while waiting for a&nbsp;subsequent enforcement proceeding in which the regulation’s validity can be challenged.</p> <p>CIC petitioned the Supreme Court to review that ruling, supported by <a href="">a&nbsp;Cato brief</a>, and the Supreme Court agreed to hear the case. Cato has now joined the National Federation of Independent Business and five other organizations in filing <a href="">an <em>amicus </em>brief</a> supporting CIC on the merits. We argue that an examination of existing exceptions to the AIA support the conclusion that the statute focuses on lawsuits that restrain assessment or collection, not pre‐​enforcement challenges. With the context provided by these built‐​in exceptions, the AIA looks less like one intended to pre‐​empt all suits affecting taxation and more like one that can exist comfortably alongside the APA and challenges to the validity of agency rulemaking.</p> <p>Moreover, the Sixth Circuit’s interpretation creates an unnecessary conflict between the AIA and the APA. The APA contains a “strong presumption” of judicial review prior to enforcement of substantive regulations like the one at issue here. Congress intended that all agencies’ substantive regulations would be subject to such review under the APA, and it certainly didn’t intend for the IRS to be almost immune from accountability before federal courts. People have a&nbsp;right to be sure of a&nbsp;regulation’s meaning before engaging in costly compliance efforts, and that’s exactly what pre‐​enforcement judicial review provides.</p> <p>The APA contains stringent procedural requirements for how regulations are to be promulgated. The IRS frequently ignores these requirements and must be reined in. The Supreme Court should hold that the AIA doesn’t deny CIC the right to its day in court.</p> Wed, 22 Jul 2020 15:48:51 -0400 Ilya Shapiro, James Knight Robert A. Levy discusses John Roberts and SCOTUS on The Bob Harden Show Wed, 22 Jul 2020 10:13:01 -0400 Robert A. Levy Josh Blackman discusses Chief Justice Roberts and the SCOTUS on the Advisory Opinions Podcast Thu, 16 Jul 2020 11:05:01 -0400 Josh Blackman Ilya Shapiro discusses the recent SCOTUS rulings at the Jewish Policy Center Wed, 15 Jul 2020 11:15:59 -0400 Ilya Shapiro Ilya Shapiro discusses the recent SCOTUS rulings on CBS This Morning Podcast Wed, 15 Jul 2020 11:14:04 -0400 Ilya Shapiro Ilya Shapiro’s upcoming appearance on the CBS This Morning Podcast is promoted on CBS This Morning Wed, 15 Jul 2020 11:08:33 -0400 Ilya Shapiro Yearwood v. Department of Interior Ilya Shapiro, Trevor Burrus, Michael Collins <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Much like lawyers, spiders don’t drum up warm feelings for most people. It’s probably because both are known for spinning webs. Unlike lawyers, however, the federal government has placed some spiders on the endangered species list—and not just big ones, but ones so small that it takes 14 surveys of a&nbsp;cave to even make sure they’re there. One such spider, the near‐​invisible bone cave harvestman, is found only in a&nbsp;small section of Texas and resides in an unknown number of underground caves.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>If a&nbsp;property owner finds out his land is teeming with these small spiders, he’ll be shocked when he discovers he could face hefty fines if he accidentally steps on one. This sort of mistaken squashing, defined as a “take,” is prohibited by the Endangered Species Act (ESA). As an act of Congress, the application of the ESA to the bone cave harvestman must be constitutionally authorized. But even though the bone cave harvestman is utterly devoid of commercial value—it’s not a&nbsp;delicacy, no one is making necklaces out of them, and no one is traveling from other states to see them—the government claims the Commerce Clause allows it to list the spider as endangered and impose harsh penalties for a “take.”</p> <p>Article 1, Section 8&nbsp;of the Constitution grants Congress the limited power to regulate commerce between states. Taken at face value, the Commerce Clause would allow the federal government to control the movement and sale of goods that affect the national market—for example, gasoline and other commodities. It wasn’t written to justify federal regulation of noncommercial activities, goods, or species. Yet, the government does precisely that when it uses the ESA to punish property owners for interfering with a&nbsp;nearly undetectable spider that has no commercial value at all.</p> <p>The American Stewarts of Liberty sued to challenge the ESA’s application to this small Texan spider. The district court dismissed their challenge and a&nbsp;panel of the Fifth Circuit affirmed. They now seek a&nbsp;review of the decision from the full Fifth Circuit, which is called en banc review. Cato, joined by the Southeastern Legal Foundation and the Mountain States Legal Foundation, has filed a&nbsp;brief in support.</p> <p>We argue that listing the bone cave harvestman under the ESA goes too far in pursuing the otherwise admirable goals of preserving wildlife. In&nbsp;<em>NFIB v. Sebelius</em>, the challenge to Obamacare’s individual mandate, the Court ruled that someone who hasn’t purchased health insurance could not be forced to do so under the Commerce Clause (but, alas, they can be made to pay a “tax”). Despite ultimately losing that case, the decision is still an important precedent for the limits of the Commerce Clause. The bone cave harvestman is like someone who hasn’t purchased health insurance. The creatures are not in the stream of commerce and their mere existence can’t be said to put them in congressional jurisdiction. If that were so, then the Commerce Clause would be converted into a “jurisdiction over all animals” clause, which certainly is not what the Framers intended.</p> <p>Exempting the tiny spider would not require striking down the entire ESA. Surely, the safety of red wolves, blue whales, and spotted owls does not depend on a&nbsp;tiny spider’s appearance on the endangered species list. The Commerce Clause has grown far too many legs, and the Fifth Circuit should prevent it from endangering our constitutional order.</p> </div> Tue, 14 Jul 2020 12:01:14 -0400 Ilya Shapiro, Trevor Burrus, Michael Collins Texas Beer Should Be Sold as Freely as Tennessee Whiskey Ilya Shapiro, James Knight <p>The Constitution guarantees the right to engage in commerce within the United States free from interstate trade wars through what’s known as the “dormant” Commerce Clause, which stops protectionist state regulations. Last year, the Supreme Court’s groundbreaking opinion in <em>Tennessee Wine &amp;&nbsp;Spirits Retailers Association v. Thomas</em> reaffirmed this principle, holding Tennessee’s durational residency requirements for retail liquor licenses unconstitutional. (Cato filed <a href="">a&nbsp;brief</a> in that case and published <a href="">an article</a> on the ruling in the <em>Cato Supreme Court Review</em>.)</p> <p>As the Court discussed, the residency requirements effectively prevented any publicly traded corporation from selling liquor at retail in Tennessee. These requirements created precisely the discriminatory effect on interstate commerce that the dormant Commerce Clause prohibits. Despite the clear ruling in <em>Tennessee Wine</em>, however, the U.S. Court of Appeals for the Fifth Circuit recently declined to invalidate a&nbsp;Texas law with the same effect.</p> <p>Texas bans publicly traded companies from obtaining the “package store” permits (or “P permits”) required for retail liquor sales. At the same time, the ban has a&nbsp;grandfather clause exempting companies that had a&nbsp;P permit before the law went into effect. As a&nbsp;result, the only public corporations with a&nbsp;P permit are Texas companies who had met the old, unconstitutional residency requirement. Even without the grandfather clause, however, the public corporation ban has served its intended protectionist purpose: 98% of retail liquor stores in Texas are owned by Texans.</p> <p>Walmart filed a&nbsp;lawsuit challenging the Texas law. The Fifth Circuit upheld the law, finding that it had no discriminatory effect on out‐​of‐​state businesses. In reaching this decision, the court ignored the grandfather clause and analyzed the remainder of the law under a&nbsp;highly formalistic test that is in clear tension with <em>Tennessee Wine</em>.</p> <p>Walmart has now asked the Supreme Court to review the case, which petition Cato has supported with an <a href="">amicus brief</a>. We argue that the dormant Commerce Clause unquestionably guarantees the right to engage in the interstate alcohol trade free from discriminatory state regulations. The Texas law contradicts this central constitutional principle. The ban on public corporations owning retail liquor stores does exactly what it’s supposed to do: shield Texas companies from out‐​of‐​state competition. Moreover, by granting an exemption to in‐​state companies that is unavailable to out‐​of‐​state companies, the grandfather clause blatantly favors in‐​state businesses.</p> <p>Between its refusal to engage with the implications of the grandfather clause, its highly formalistic analysis of the discriminatory effects of the law, and its disregard for <em>Tennessee Wine</em>, the Fifth Circuit’s approach treats the constitutional guarantee of free interstate commerce as dead letter. Even a&nbsp;moderately talented legislator could craft a&nbsp;protectionist law that appeared sufficiently neutral to pass constitutional muster in the Fifth Circuit.</p> <p>The Supreme Court should thus hear <em>Wal‐​Mart Stores v. Texas Alcoholic Beverage Commission</em>, reaffirm the strong dormant Commerce Clause principles of <em>Tennessee Wine</em>, and open up the liquor trade in Texas.</p> Mon, 13 Jul 2020 21:15:17 -0400 Ilya Shapiro, James Knight Josh Blackman discusses his article, “It must be nice to have John Marshall on your side,” on the Bloomberg Law podcast Mon, 13 Jul 2020 10:59:00 -0400 Josh Blackman Ilya Shapiro discusses the SCOTUS year in review on the A Random Walk with Ben Kohlmann podcast Sun, 12 Jul 2020 10:49:43 -0400 Ilya Shapiro Ilya Shapiro discusses a wrap‐​up of the SCOTUS session on FOX’s The Journal Editorial Report with Paul Gigot Sat, 11 Jul 2020 10:59:50 -0400 Ilya Shapiro Understanding Oklahoma’s New (Old) Indian Country Walter Olson, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p><em>McGirt v. Oklahoma</em> may shift a&nbsp;great deal of how we think about “Indian Country” in the U.S. Supreme Court Justice Neil Gorsuch’s opinion in the case was a&nbsp;big win for Native American interests. Walter Olson comments.</p> </div> Fri, 10 Jul 2020 17:09:31 -0400 Walter Olson, Caleb O. Brown William Yeatman discusses the Michael Flynn case and the recent SCOTUS rulings on The Bob Harden Show Fri, 10 Jul 2020 12:27:50 -0400 William Yeatman Josh Blackman discusses recent SCOTUS rulings on The Hugh Hewitt Show Fri, 10 Jul 2020 10:55:20 -0400 Josh Blackman In Drama‐​Filled Supreme Court Term, Cato Still Manages a Solid Winning Record Ilya Shapiro <p>This is the year it really became the Roberts Court. Chief Justice John Roberts presided over Donald Trump’s impeachment trial, navigated the Court through unusual pandemic‐​driven telephonic oral arguments—complete with toilet flushes and forgotten unmute buttons—and was in the majority more than anyone else, including all but one of the thirteen 5–4 decisions.</p> <p>Perhaps most notably, Roberts shocked court‐​watchers by joining the liberal‐​leaning justices on three key cases decided at the end of June, involving LGBT rights, DACA, and abortion. That, plus Justice Neil Gorsuch’s <em>writing</em> the opinion in the Title VII sexual orientation/​gender‐​identity case, <em>Bostock v. Clayton County</em>, set off a&nbsp;circular firing squad on the right as so‐​called common‐​good constitutionalists went after originalists and textualists.</p> <p>Still, when you look at the numbers, the term was anything but a&nbsp;judicial left‐​turn. Of those 13 5–4 decisions, nine had Roberts joining the more conservative justices and only three had a&nbsp;conservative joining the liberals (Roberts on DACA and abortion, Gorsuch on Oklahoma as Indian Country). Last term, there were eight 5–4 cases where a&nbsp;conservative justice joined the liberals and only seven where conservatives stuck together. That’s why progressives breathed sighs of relief but aren’t treating Roberts as the second coming of Anthony Kennedy, let alone David Souter.</p> <p>But what about libertarians? To be honest, most case outcomes were overshadowed by the Court’s decision <em>not </em>to take up any of the slew of very good cases presenting claims regarding the Second Amendment and qualified immunity, respectively. Both areas are crying out for the justices’ clarification and legal development, the former after a&nbsp;decade of neglect that has allowed the lower courts to engage in massive resistance and the latter presenting a&nbsp;cross‐​ideological alliance of policy reformers.</p> <p>The Second Amendment cert denials were a&nbsp;surprising disappointment because the Court had, earlier in the term, declared moot <em>N.Y. State Rifle &amp;&nbsp;Pistol Association v. City of New York</em>, which the justices had agreed to hear soon after Justice Brett Kavanaugh replaced Justice Anthony Kennedy — and with a&nbsp;concurrence by Kavanaugh that noted the Court “should address that issue soon.” The qualified immunity denials also came as a&nbsp;shock, coming in the middle of nationwide protests against police abuse. Notably, Justice Clarence Thomas dissented from cert denials on both issues.</p> <p>As to the actual rulings, libertarian groups didn’t tend to participate in the high‐​profile cases on abortion, employment discrimination, or Trump tax returns, so there wasn’t too much to get particularly happy or sad about. The biggest victory was in <em>Espinoza v. Montana Department of Revenue</em>, which removed the last legal roadblock to school choice programs nationwide. The biggest loser, oddly enough, may have been <em>Department of Homeland Security v. Regents of the University of California</em>, the DACA case, because that essentially created a&nbsp;ratchet for executive power — though of course there the policy upside to the preservation of this otherwise unlawful program is huge.</p> <p>Cato filed in 11 cases altogether, coming out of the term with a&nbsp;6–4-1 record (counting the mooted Second Amendment case as a&nbsp;wash). That’s not as good as the previous term’s 12–4 clip, but still beats our biggest rival, the U.S. government, which by my count went 12–11. (It’s an apples‐​and‐​oranges comparison, I&nbsp;know, because the government typically appears as a&nbsp;party, not simply amicus, and always participates in oral argument.) Cato won 8&nbsp;votes from Justices Gorsuch and Kavanaugh, 7&nbsp;votes from Justice Alito, 6&nbsp;votes from Chief Justice Roberts and Justice Thomas, 4&nbsp;votes from Justice Sotomayor, 3&nbsp;votes from Justices Breyer and Kagan, and 2&nbsp;votes from Justice Ginsburg.</p> <p>Here’s the full breakdown, in the order the opinions arrived:</p> <p><strong>Winning side (6)</strong><span>: <em>Georgia v. Pub​lic​.Resource​.Org Inc.</em>; <em>Liu v. SEC</em>; <em>Seila Law v. CFPB</em>; <em>Espinoza v. Montana Dep’t of Revenue</em>; <em>Barr v. AAPC</em>; <em>Little Sisters of the Poor v. Pennsylvania</em>.</span></p> <p><strong>Losing side (4)</strong><span>: <em>United States v. Sineneng‐​Smith</em>; <em>FOMBPR v. Aurelius Investment, LLC</em>; <em>DHS v. Regents of the University of California</em>; <em>USAID v. AOSI</em>. </span></p> <p><strong>Moot (1)</strong>: <em>N.Y. State Rifle &amp;&nbsp;Pistol Ass’n Inc. v. City of New York</em></p> <p>Next term already has some exciting cases, though remember that none of them will be decided before the election. The Court will consider: whether Delaware can limit judges affiliated with a&nbsp;political party on the state’s three highest courts to no more than a “bare majority,” reserving all other seats to the “other major political party” (<em>Carney v. Adams</em>); if Philadelphia can ban Catholic Social Services from its foster/​adoption program because they won’t place kids with gay couples (<em>Fulton v. Philadelphia</em>); whether Obamacare’s individual mandate is still constitutional—and if not, what of the statute can survive (<em>California v. Texas</em>); whether copyright protections extend to software (<em>Google v. Oracle</em>); and whether the House Judiciary Comm. can get the Mueller investigation’s grand jury materials (<em>DOJ v. House Judiciary Committee</em>).</p> <p>I’ll have more to say in future commentary, but if you’d like to learn about all these cases and trends from the perspective of Cato‐​friendly scholars and lawyers, make a&nbsp;note to watch our 19th Annual Constitution Day Symposium, which will be held September 17 (Constitution Day). That’s also when we’ll be releasing the latest volume of the <a href="">Cato Supreme Court Review</a>. And this year it also coincides with the release of my new book, <em>Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court</em>, which is <a href="">now available for pre‐​order</a>.</p> <p>And with that, we can bid adieu to the Supreme Court until October — except that this summer, the justices, like the rest of us, aren’t going anywhere.</p> Fri, 10 Jul 2020 09:52:06 -0400 Ilya Shapiro Ilya Shapiro discusses Trump v. Mazars USA, LLP on CBS Radio Thu, 09 Jul 2020 12:40:42 -0400 Ilya Shapiro Ilya Shapiro discusses Trump v. Mazars USA, LLP on CBSN Thu, 09 Jul 2020 12:37:44 -0400 Ilya Shapiro