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Yes, Scalia Messed Up. But He Was Right. Sort of. (Although not about his claim that in 2001 the EPA was masquerading as a trucking association and arguing both sides of a lawsuit.)

(Important update below.)


Well, I’m sure y’all have heard by now about Scalia’s hilarious confusion of the EPA with the American Trucking Association, even if you didn’t read this post of mine about.  The two cases at issue are Whitman v. American Trucking Associations., from 2001, and EPA v. EMA Homer City Generation, the case decided earlier in the week in which Scalia, in his dissent, accused the federal gummint of trying get away with something in Whitman that in fact the Trucking Association was trying to get away with. Yikes.

At the heart of these cases is a Court-created doctrine called the Chevron doctrine. I’ve mentioned it here at AB a few times and would not be mentioning it again–trust me!–except that Harvard Law professor/Bloomberg Law writer Noah Feldman has an article at Bloomberg today that pretty much sums up the 2001-opinion-vs.-this-week’s-opinion stuff, and the doctrine he describes but does not identify by name is the Chevron doctrine.  The article is headlined “Yes, Scalia Messed Up. But He Was Right.”.

That title, though, which probably was written by a headline writer at Bloomberg, isn’t complete. Feldman says Scalia was partly right and partly wrong. (Okay, okay; what do I expect from a headline?!)  Yes, Feldman says, there is a tension between the Court’s claim about the specificity of the section of the Environmental Protection Act at issue in Whitman and the (different) section of that statute at issue in EMA, because the two sections are pretty equally specific (or nor) about what the EPA can consider.  And Scalia was right to point that out.

But, he says, the actual respective issues in the two cases were significantly different from each other.  In Whitman, the issue was whether the EPA was required to make a cost assessment before ordering compliance with EPA environmental standards. The agency said it did not, and in a unanimous opinion written by Scalia the Court said it did not.  In EMA, by contrast, there apparently was no question but that air pollution in the state downwind of the power plant at issue was higher than permissible under EPA regulatory standards, and also apparently no dispute that some of the pollution was coming from the power plant.  The EPA apparently saw the case as entirely about whether the power plant company could be forced to contribute to the cost of reducing the level of air pollution in the downwind state.

(I used all those qualifiers, like “apparently,” in that last paragraph because I have no expertise whatsoever in environmental law and because I haven’t read either the majority opinion written, by Ruth Bader Ginsburg, or Scalia’s dissent, joined by Clarence Thomas, who probably would have joined Scalia’s dissent even if it had claimed that the federal gummint back in 2001 was impersonating plaintiff Vladimir Lenin. (Okay, especially if it had.)

Someone, whether the corporate person who challenged the EPA ruling or instead the sovereign downwind state (who are people only when they want to be), was going to pay the costs to reduce the pollution.  And the EPA apparently argued that the sovereign downwind state should be assisted in this by the corporate person that was causing some of the pollution, even though that corporate person resides in another sovereign state. Remember: I don’t actually know anything about this case. But Feldman does. He explains:

The answer to why the EPA wanted to weigh costs in setting the good neighbor rule is more complicated. In her opinion, Justice Ginsburg explained the EPA was primarily concerned with allocating costs fairly among different states that might have in the past spent different amounts on reducing pollution. Considering cost was therefore a solution to what she called an “allocation problem.” Equity, not efficiency, was driving the bus. Because the EPA didn’t think of itself as setting standards to protect the environment directly, just as distributing costs among different actors, it didn’t mind weighing costs and benefits in this case.

There’s a lesson here for how the environmental community thinks about cost-benefit analysis: not as a mechanism for identifying the right amount of environmental protection, but as a tool for handing out the burdens fairly. To Scalia, this might well be a distinction without a difference; but to the EPA, it’s what separates clean air from the question of who pays for it.

But in my opinion (which isn’t worth much; I don’t know anything about the law or the case!), the tension between Whitman and the majority opinion in EMA–a tension solely concerning the specificity of the two respective statutory sections at issue in the two cases–is beside the point, if, as Feldman says, there was no dispute about excessive air pollution and that the power plant was a significant cause.  The dispute concerned only who would pay for the necessary reduction in pollution. If I understand him correctly, this is what Feldman is saying, too.

If I’m not mistaken, though–and I may well be–what Scalia really is arguing is that the EPA violated the rights of a power company that is entitled to invoke its state’s sovereignty, which could be abridged by a regulatory change allowing the EPA to consider costs, but which hasn’t been abridged because there has been no such regulatory change.

That regulatory change will have to await a Koch-sponsored White House administration.  As Feldman points out, when the issue is whether or not there will be a change ordered at all, rather than who will pay for the change, it is the corporate folks who insist that the EPA must make a cost analysis before ordering a reduction in (or bar to) pollution.

I don’t really understand this apples-and-oranges conflation of these two separate issues, in two separate, unrelated contexts that use the word “cost.”  It seems to me that the “good neighbor” provision of the statute–the statutory section at issue in EMA–has as its very purpose exactly what was at issue in that case: allocation of costs between neighbor states and communities. But what do I know?  Maybe I should read the opinion and dissent in EMA. But I probably won’t. Instead, I’ll just wait until Scalia explains this conflation the next time he speaks at some law school or to an interviewer. I’m sure it won’t be a long wait.


UPDATE: Reader Bloix posted this terrific comment to my post this morning:


May 4, 2014 4:32 am

Here’s the problem the EPA faced:

Suppose the permissible level of air pollution is ten. Suppose downwind State D has a level of 12, all caused by pollution sources in upwind states A, B, and C. Suppose A contributes 5, B contributes 4, and C contributes 3.

The EPA must impose regulations to bring the amount in D to 10, and it must do so by regulating the sources that contribute “significantly” to the violation. Not contribute significantly to the pollution – to the violation.

Obviously, each upwind state contributes significantly to the pollution. But do all of them contribute significantly to the violation? After all, if State A stopped polluting entirely, then B and C could keep on polluting with no reduction and D’s air would be in compliance. And the same is true for B and C.

EPA thinks that it can use cost benefit analysis to bring the level into compliance without violating the statute, even if that means requiring no reduction for some upwind states. So, if State A’s polluting sources can be reduced from 5 to 3 for a million dollars a point, but reducing State B’s contribution costs $10 million a point and State C costs $100 million a point, the EPA will require State A’s sources to cut two points from their pollution. The pollution is reduced to 10 and the problem is solved for $2 million.

But, Scalia says, “significant” means you look at the pollution, not the cost of cleaning up. So you must reduce the costs pro rata. From 12 to 10 is a 16.67% cut, so each upwind source must reduce by that much: State A must go from 5 to 4.17, State B from 4 to 3.33, and State C from 3 to 2.5.

This will cost $57.53 million, which is an insane imposition a deadweight loss of $55.53 million on private businesses. It also enacts a penalty on states that have been out front in reducing pollution – the reason it costs so much more to reduce pollution in State C is that C has already enacted regs imposing the cheap controls that State A hasn’t bothered with.

But Scalia says it must be done, because the word “significant” does not allow for costs to be taken into effect.

Does Scalia really believe this? And do the companies opposing the regs really want to force the waste of $55 million (or, in real life, many billions?)

No, of course not. What they want is to make the regulations unworkable. And requiring pro rata reductions without regard to cost would be so expensive and so obviously unfair that genuine progress in reducing upwind pollution would become very difficult if not impossible. That is the whole point of Scalia’s position.

Again: I wasn’t joking when I said in my post that I know nothing to speak of about environmental law (I wish I did), and that I know very little about this case–or did until I read about the argument in the case last week; now I know more, but not all that much more.  I do, as I said, know a bit about the Chevron doctrine, which is the Supreme Court-created doctrine that sets out the permissible parameters of federal regulatory agency regulations.  But Bloix, who to my knowledge is not a regular AB reader or comment poster, sure does know a lot about this particular case and relevant environmental law, or so it certainly appears. (And now that I’ve read his comment, I know more than I did.)

I’m not sure how he happened upon my post, but I’m glad he did.  (“Regs,” by the way, is legalese shorthand for “regulations,” as I learned the hard way when in my first year of law school one of my profs started babbling away one morning, when I still needed another cup of coffee or three, about “the regs.”  I sat there suppressing a yawn and saying to myself: “What the hell are ‘the regs?'”  And eventually, “Ahhh. The regulations.”) — 4/4

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Follow-up to “Scalia’s Curious Memory Lapse”: Is the Supreme Court about to limit its holding in Garcetti v. Ceballos?

Okay, first things first.  And the first thing is that when you (okay, when I) put the word “after” instead of “before” in a key sentence, and the error (which in this instance occurred because of a cut-and-paste sentence-edit typo in a complex sentence) makes the sentence nonsensical, you’re gonna be stepping on your own punch line.*  Which is what I did in my post Tuesday titled “Scalia’s Curious Memory Lapse,” in the first sentence of a paragraph that, corrected, reads:

Ah, but that’s because Lane was unaware of the 2006 opinion in Garcettti v. Ceballos.  The second one issued, that is, less than a month after* Samuel Alito was sworn in as Sandra Day O’Connor’s replacement; not the first one issued, in the last few days before O’Connor formally retired. (Yes, as I explain in that post of mine from last January that I linked to above, Garcettti v. Ceballos has quite an interesting little twist to it, procedurally.)

The second thing is, um … I think I’ll just quote my exchange with Robert Waldmann in the Comments section, which should suffice:

ROBERT: I was puzzled when reading the first few sentences of this post, because I had assumed it was about *another* amazing Scalia memory lapse. The other unrelated astonishing error was Antonin Scalia’s totally incorrect citation of an opinion written by eminent Jurist uh Antonin Scalia [link].

“”Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.””

Wow. Too bad supreme court justices can’t be impeached for senility (or for the standard conduct of signing opinions and dissents actually written by their clerks). Too much worse that no Republican will be impeached ,while Republicans control the House, or convicted, while there are 34 of more Republican senators. But two amazing howlers in about a week must be one for the history books.

ME: Robert, yeah, when I wrote the post and the title two days ago, I didn’t know yet about that weird error by him in his dissent in the EPA case. I should have changed the title yesterday; I think I’ll tweak it now, even though the post is old now. [I did.]

The “memory lapse” I’m talking about in this post isn’t actually a memory lapse, though. Scalia well remembers exactly what the situation was in Garcetti, and what the result was, because it’s critical to the arguments in Harris v. Quinn, which they’re deciding this term. It’s probably already been decided, and the dissent is being written now.

Thanks, Robert, for your comment.

I want to add here that I suspect that Scalia’s comment at the argument on Monday in Lane v. Franks that was the main subject of my earlier post–“I’ve never heard of this distinction, the First Amendment protects only opinions and not facts.  I’ve never heard of it.”–suggests that the Court is about to significantly limit its holding in Garcetti.

Which would be a good thing for prosecutors who want to inform their bosses that the police officer who sought the search warrant at issue apparently fabricated the “probable cause” for the warrant, or that the police officer who obtained the confession from a suspect did so by lying to the suspect, or that the police officer who dealt with the victim or witness insist or ensure that the victim or witness identify the suspect in a lineup as the perpetrator.  Or some such.  And it probably would be pretty good for innocent suspects, too.

Not so good, though, for cops who want to frame people.  Or for prosecutors who do, and aren’t on good terms with a colleague or two or with a subordinate. And you never know who might turn out to have a conscience.

This would be a big deal.

Meanwhile, about that real memory lapse by Scalia, in his dissent in EPA v. Homer City Generation, you can read the latest on it here.  The AP’s Mark Sherman nails it.

That federal gummint is always trying to get away with something! Even impersonating a trucking association.

*Sentence edited to correct a cut-and-paste typo. 4/2. Sighhh.

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Justice Scalia’s Curious Memory Lapse. NO, not the one everyone’s talking about. [Post typo-corrected]

Clarification appended below.


During oral arguments in a freedom-of-speech case out of Alabama, several justices challenged the notion that public employees who testify truthfully about an issue of significant public concern aren’t shielded from retaliation by the First Amendment.

“What kind of message are we giving when we’re telling employees, you’re subpoenaed in a trial, go and tell a falsehood because otherwise you can be fired?” Justice Sonia Sotomayor asked attorneys in the case.

The Fifth Amendment protects state employees against self-incrimination on the witness stand, but “it doesn’t protect the department he works for from being incriminated,” Chief Justice John Roberts said.

Justices suggest public employees’ testimony is protected, Mary Orndorff Troyan, USA Today, today

It’s nice to know that the Fifth Amendment doesn’t protect the department he works for from being incriminated.  It would be nicer still to know that the First Amendment, so vaunted these days by the Supreme Court as allowing the purchase of legislative votes as long as there’s no formal purchase receipt issued by the legislator/seller, that that Amendment protects the truthful speech of public-employee whistleblowers, and not just the speech of public employees who don’t want to speak in support of big government by being compelled to pay a fee to the union that is negotiating the terms of their employment (pay, benefits, working conditions) and that will represent them in disputes with the employer.  (Okay, the last part of that compound sentence is based on a comment by Alito during argument in January in a case called Harris v. Quinn.  The opinion in the case hasn’t been issued yet.)

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Gail Collins (and me): Free Us From ‘Freedom’

To be fair, I don’t think Hannity had any idea about Bundy’s racial theories. However, it’s generally a good idea to be wary of lionizing people who go around saying: “I don’t recognize the United States government as even existing.”

Anyhow, Cliven was toast, although he did make an appearance on CNN, in which he explained that his racist remarks were all about — yes! — freedom. In this case, the “freedom to say what we want. If I call — if I say ‘negro’ or ‘black boy’ or ‘slave,’ I’m — if those people cannot take those kind of words and not be offensive, then Martin Luther King hasn’t got his job done yet.”

— Gail Collins, Of the Fox and the Cattle, NYT, today

I was happy, when I read that column this morning, to see that people are catching on to this rightwing “stick-the-label-’freedom’-onto-whatever-we-want-to-do” thing–this is very big at the Supreme Court these days–but now I’m having second thoughts.

I’ve always wanted a ranch out West.  And I don’t really recognize Cliven Bundy as even existing, nor the Recorder of Deeds in his county as even existing.  And if I can get a group of folks together who don’t either, I see no reason why I can’t fulfill my dream and have a ranch out West even though I can’t actually afford to buy one.

My dream involves horses, though; not cattle.  But there probably are some horse ranches in that county whose “owners” I don’t even recognize as existing, so while I don’t really want the land they claim is theirs–the Bundy ranch is big enough for my needs, and it looks nice–I’m sure my group and I can manage the horse-herding thing from one ranch to another.  At least as long as we have enough ammunition for our AK-47s.

The best part is that one of my senators–not Harry Reid; the other one–will be very supportive of me in this.  I can’t wait to vote for him in 2018.  If I haven’t shot myself with my semi-automatic by then.

I now want to see the Republicans regain control of the Senate.  So maybe I can convince the Democrats to feature ads quoting Heller on this whole freedom/Bundy issue.  I’m sure the Dems think that would scare some moderate folks into voting Democratic, so they won’t see my real purpose.  But I know better.  A lot of moderates want ranches in the West, too.

Wanna join me on the ranch?


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The Supreme Court’s Runaway AEDPA Train–And What Can Be Done About It Via Collateral Judicial Review. (Yes, this is technical language, but bear with me. I explain it.)

UPDATE: Elena Kagan served as an Associate White House Council in the Clinton administration in 1995-96, when AEDPA was being drafted and negotiated.



“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’–and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.

— Me, Angry Bear, Apr. 5

For about 24 hours this week, specifically between Tuesday morning and Wednesday morning, I thought that might be about to change.  The issue in Tuesday’s big affirmative action case, Scheutte v. BAMN, was not actually affirmative action.* It was instead whether a state voter initiative that amends the Constitution and that singles out minority races erects unconstitutionally high barriers to racial minorities’ practical ability to obtain a change in that policy, because it removes the possibility of gaining a change through the normal political and governmental processes.

Kennedy wrote the plurality opinion for himself, Roberts and Alito. Roberts also wrote a separate concurring opinion.  Breyer joined only in the outcome, writing a separate opinion only for himself. Scalia, joined by Thomas, wrote a separate opinion concurring in the judgment. Sotomayor, joined by Ginsburg, wrote a dissenting opinion.  Kagan did not participate.

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Now That the Supreme Court Has Found a Right to Vote in the First Amendment, Are State Laws Denying the Vote to Convicted Felons Unconstitutional? You Betcha.

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

— The REAL News From the McCutcheon v. FCC Opinion, me, Apr. 3

Actually, I had thought the most basic right in our democracy was the right of states to violate individuals’ constitutional rights as they chose, courtesy of the fundamental constitutional principle of states’ equal sovereignty.  So my post and its title were intended as facetious.  But then AB reader Alex Bollinger reminded me in a comment to my post that Antonin Scalia had written in his concurrence in Bush v. Gore that the Constitution contains no generic guarantee to the right to vote.

I mean, sure, the Fifteenth Amendment says:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

But those Reconstructionist types who drafted and ratified that Amendment hadn’t checked with James Madison before presuming that there was a right of citizens of the United States to vote.  And, more important, they hadn’t checked with Roger Taney.

In any event, Scalia, by joining Roberts’ opinion in McCutcheon, now agrees that the Constitution indeed guarantees a right to vote.  It does so in the First Amendment, which James Madison participated in drafting!  And which Roger Taney probably approved of.  (Whew!)

While that first sentence in McCutcheon doesn’t directly identify the First Amendment as the source of the right to participate in electing our political leaders, elsewhere in McCutcheon the First Amendment is expressly credited as guaranteeing that right.

I realized that this morning when I read Linda Greenhouse’s op-ed in today’s New York Times in which she pretty much sums up John Roberts along with McCutcheon.  She writes:

It wasn’t until the Roberts court’s Citizens United decision in 2010 that the court shrank the definition of corruption to quid pro quo bribery. To assess the implications of that shift, it’s important to remember what Citizens United was about: not direct contributions, which remain prohibited to corporations, but independent spending. In the Buckley decision and since, the court has accorded greater First Amendment protection to independent expenditures than to direct contributions, which it has viewed as more tightly linked to the anti-corruption rationale and thus properly subject to tighter regulation. To say that only quid pro quo corruption can justify a limit on independent expenditures was not to similarly limit the rationale for regulating direct contributions, the subject of the McCutcheon case.

But in his McCutcheon opinion, Chief Justice Roberts collapsed the distinction between the two, extending Citizens United’s narrow definition of corruption to direct contributions. The government “has a strong interest,” he wrote, “in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.” Justice Stephen G. Breyer’s dissenting opinion called the chief justice out on this maneuver, but in vain.


Greenhouse’s main focus in that op-ed is Roberts’ ridiculously transparent pretenses to judicial minimalism, in McCutcheon and in his opinion last year striking down the key section of the Voting Rights Act case on the fundamental constitutional principle of states’ equal sovereignty introduced in 1885 by Chief Justice Taney in Dred Scott v. Sanford, and dormant since the Civil War began in 1861 until last year.  What Roberts actually is doing, as I wrote here in a series of posts, and as Greenhouse makes clear, is effectively rewriting the standard for judicial review of federal and state laws so that it’s now simply a game of sophistic, sleights-of-hand analogies and of redefinitions of common words and phrases.

Earlier this week, in what I thought would be my final post on that subject, I suggested that liberals should plan to pick up that Supreme-Court-can-now-casually-repeal-statutes-it-doesn’t-like ball and run with it, once they regain a 5-4 majority on the Court.  I said that there were several statutes that I could think of offhand that would be good candidates for this, including some that actually are unconstitutional, not necessarily as written but as the current Court majority has interpreted them, and as an example I cited the Federal Arbitration Act, which as it happens, is the law at issue in another article in the New York Times today: This one. (H/T Dan Crawford.)

And aren’t some of those anti-labor-union sections of Taft-Hartley unconstitutional?

But more immediately–and deadly seriously–I see no even-remotely logical ground upon which the state statutes that remove the franchise from convicted felons can survive McCutcheon’s statement that even corruption, other than that of the direct, explicit quid pro quo variety, cannot be limited, because we must ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.  Remember: This prohibition is in election-law statutes, not in criminal-sentencing statutes, which shouldn’t, but could, make a difference.  I hope challenges to those state laws begin soon.

Greenhouse points in her op-ed to a passage in McCutcheon in which Roberts justifies the de facto overruling of a part of Buckley v. Valeo, the first post-Watergate Supreme Court opinion that addressed campaign-finance law, by saying that, well, Buckley concerned another federal statute, not McCain-Feingold, which was enacted in 2002–and since Buckley, the Court’s conservative majority has partnered aggressively with usual-suspect Conservative Legal Movement lawyers and groups to rewrite First Amendment jurisprudence as a deregulation juggernaut.  Regulatory statutes that crowd doesn’t like but can’t repeal through the legislative process can be struck down as violations of the First Amendment!  Call it playing the First Amendment card.

Which of course could butt up against the fundamental constitutional principle of states’ equal sovereignty.  But which, in light of McCutcheon, would look like pure partisanship, concerning state election laws that deny the vote to convicted felons. Which may not matter.

As I suggested in another post this week, liberals and libertarians can play the McCutcheon First Amendment card in another respect: pushing for legislation (or an SEC rule) that would prohibit publicly-traded corporations to from making political expenditures–and, eventually, direct campaign contributions–unless the corporation first gets approval from a majority of shareholders.  As I pointed out in that earlier post, a passage from McCutcheon itself seems to imply that the First Amendment right of citizens to choose who shall govern them is a right of personal choice that, Citizens United notwithstanding, cannot be co-opted derivatively without intentional delegation.

I ended that post by saying that the conservative majority’s petards can hoist only so much before shrapnel lands so visibly in unintended places that it becomes impossible to hide it.  And, who knows? Maybe I’m right.


*Cross-posted at The Law of the Jungle.

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SCOTUSblog’s Problem: It’s Not Incorporated [OK, I’m sure it is, but you get the point.]

Last week, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised us that it would refuse to renew the credential it had previously granted Lyle when it expires next month.  We were disappointed in that decision, and we are grateful for the support that we have received through social media, emails, and phone calls.

We thought it would be useful to write and explain the state of play regarding our credentialing.  SCOTUSblog is not now, and has never been, credentialed by the Supreme Court.  The Court’s longstanding policy was to look to credentials issued by the Senate.  We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery.  Last year, we  finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog.  We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy.  The Court has not indicated when that review will conclude.

— An update on our press pass, Tom Goldstein, SCOTUSblog, this morning

I would joke about what happens to popular blogs when they start linking to blog posts by the likes of me on blogs like AB (talk about hoi polloi!)–or about SCOTUSblog’s need to incorporate so that it is an association of press citizens, or something (OK, I did do that in this post’s title)–but really, this isn’t funny.  At all.

Harry Reid, and also the Senate Judiciary Committee, should become involved the Supreme Court’s credentialing policy, which should not be left entirely to the Supreme Court to establish.

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Can the SEC prohibit publicly-traded corporations from making political expenditures (and, eventually, direct campaign contributions) unless the corporation first gets approval from a majority of shareholders?

It’s already become something of a favorite parlor game among liberals, especially among liberal law geeks, to speculate about when the Supreme Court will strike down state and federal statutes that prohibit corporations from making direct campaign contributions to candidates and political parties. In Citizens United, the court killed statutory bars to corporate and union political so-called-independent expenditures, and, in McCutcheon, removed aggregate limits to human beings’ direct contributions to candidates and parties.  But, for now, state and federal laws prohibiting direct corporate and union contributions–some of these laws dating back to the early part of the last century, as I understand it–remain intact.

To the surprise of some (but not me), the Court refused last week to hear a challenge by an incorporated nonprofit political organization.  The most obvious likely reason that they declined is that, as a public relations matter, it simply is too soon after McCutcheon for them to take this step in what everyone by now recognizes as a juggernaut.

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John Roberts Unwittingly Paves the Way for Eventual Wholesale Liberal Judicial Repeal of Statutes, Too

Chief Justice Roberts’ attempt to portray his decision in McCutcheon v. FEC as minimalist actually shows just how far from minimalist it is. According to the Chief Justice, no one should worry about the consequences of the Court’s decision because “there are multiple alternatives available” that would accomplish the Government’s asserted interest without, in the majority’s view, unnecessarily abridging First Amendment rights.  It would be a comforting thought if there were any truth to it.  But as Rick has pointed out, there is no chance that these alternatives will come to pass: Congress is not going to pass any new campaign finance laws (this Congress barely passes any laws at all, as the Chief surely knows), and the FEC is not going to strengthen its enforcement of existing laws (Republican commissioners on the FEC are no more in favor of campaign finance regulation than Republican members of Congress).

But what today’s Congress would do tells us little, if anything, about what the Congress that enacted the aggregate contribution limit would have done had it known that the Supreme Court would conclude that aggregate contribution limits are unconstitutional.  Would it have adopted one or more of the Chief’s proposed alternatives?  Quite possibly.  And that fact illustrates one of the most problematic, but also overlooked, aspects of judicial review—that it can produce disruptions to democratic preferences that are not constitutionally required.

— The False Minimalism of John Roberts, Brianne Gorod, Election Law Blog, Apr. 8

John Roberts’ Apr. 2 opinion in McCutcheon v. FEC is the opinion that keeps on giving, to liberal legal geeks, anyway. The opinion contains so many controversial (and, in my opinion, downright weird) statements–redefinitions of common English-language words and phrases, sophistic purported analogies, tautologies, and jaw-droppingly overt hypocrisy–that law professors, legal journalists, and hobbyist bloggers (like me!) no sooner finish writing about one statement in the opinion than we think of another aspect of the opinion that we want to write about.

I myself am pretty much McCutcheoned out by now, but before I take a break from it, I want to make two suggestions to progressives.  One is that they look ahead to when the current ideological majority no longer holds the majority–Ginsburg and Breyer are not the only justices who are aging, Ginsburg is not the only one who has health problems–and start selecting various statutes they dislike, and plan to challenge them as unconstitutional. As Gorod writes:

Judicial review is generally (and rightly) justified as an integral part of our constitutional system; it ensures that laws and regulations are consistent with our nation’s highest law.  In McCutcheon, the Court’s majority claims that the aggregate contribution limits cannot stand because they violate the First Amendment.  Whether one agrees with that conclusion or not (and as I and others have written, there are many reasons to disagree with it), most would find unobjectionable the general principle that laws that are inconsistent with the Constitution should not stand.  But as I have written elsewhere, judicial review often produces disruptions to democratic preferences that are not constitutionally required, and that is a much more significant problem.

Gorod, and others, detail a hallmark of Roberts’ strategy: Striking down as unconstitutional some key portion of an ideologically charged statute, and recommend possible substitute statutes and pronounce the ruling therefore minimalist although the substitutes could not be enacted in the current political climate and under current Citizens United-effectuated funding realities.  Roberts is fabricating constitutional grounds upon which to effectively repeal statutes enacted by earlier congresses. But by removing the institutional barriers to judicial repeal of statutes via semantics and gimmickry, he’s establishing precedent for progressives to do the same down the road.

There are a number of federal statutes I can think of that are excellent candidates for eventual liberal judicial repeal, now that the standard for judicial repeal has been so starkly and plainly lowered.  But one easy one is the Federal Arbitration Act, which, as written, is not unconstitutional, but which, as effectively rewritten by the 5-4 crowd, arguably is.  But there’s no longer any need for progressive justices, once they gain a majority, to limit themselves to striking down statutes that are, or are being interpreted in ways that make them, objectively or even arguably unconstitutional.  All that’s necessary going forward is a redefinition of a common word or phrase, and a transparently false analogy or two, and … voila!  What Roberts thinks is clever manipulation, I view as playing with fire.

Including backfire.

In another post, I’ll suggest that Congress or the SEC can prohibit publicly-traded corporations from making political expenditures (or, eventually, because that soon will become necessary, direct corporate campaign contributions) unless the corporation first gets approval from a majority of its shareholders.


Cross-posted at The Law of the Jungle.

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John Roberts Introduces a New Favorite Tactic This Term: Sleights-of-Hand Analogies

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.’”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, Mar. 26

About which I wrote a post here the next day titled: “Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes.  Roberts does, too!  (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.)

Yep. Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.

What I was referring to was this, from that post of  Kapur’s about the argument on Mar. 26 in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, the two consolidated cases challenging as violative of the First Amendment’s free exercise clause the ACA’s employer contraceptive-coverage mandate, in which a threshold issue is whether corporations can exercise religion and therefore are “persons” within the meaning of the Religious Freedom Restoration Act:

After observing that “eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” the Chief Justice asked:

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