At Least They Had Good Seats For The Speech

It was a dramatic moment, wasn't it? With a handful of the justices seated immediately before him, the President criticized the recent Citizens United decision. Supposedly, though I didn't see it, Justice Alito shook his head and said "That's not right." I haven't read any of the commentary on this yet. But let me make the following assumption: right-leaning legal thinkers are comparing this to court-packing and all manner of other evils. Left-leaning legal thinkers are saying that there's nothing wrong with shining a light on an institution that is almost completely unaccountable for the work it does.

My immediate reaction was guilty pleasure. I liked the fact that Justice Roberts, Justice Kennedy, and Justice Alito were called out in the most public setting possible by someone who commands respect. And for the second time in a couple of days, no less.

Now I haven't read all or even most of Citizens United. I suspect that it's based on a justifiable reading of the First Amendment. I'm quite certain it puts yet another nail in the coffin of conservative hand-wringing about judicial activism. To the extent there's even room for another nail anyway.

But what if it had been another president up there on the dais? The last one, for example. And what if instead of criticizing Citizens United, he'd been criticizing the decision in Lawrence v. Texas? I think I would have been less happy about that. But I think I would have been wrong.

It is now commonly accepted that presidents are going to appoint justices who share similar political philosophies. How does this President's criticism of a controversial decision differ from his predecessor's appointment of two extremely conservative justices in a clear effort to push the Court further to the right? It really doesn't. Both are public acts. Both have in mind political goals. So why are conservatives (probably)* so upset this morning? Because they lost the White House. They might get it back in a few years. They might not. But that's what's really going on here.

*Again, I haven't read a word about this yet.

Supreme Court Abolishes Michigan Trial Court*

Today, in Michigan v. Fisher, U.S. Supreme Ct. No. 09-91 (pages 11 -18), seven members of the U.S. Supreme Court decided that they were better judges of a police officer's credibility than the trial judge who heard the actual evidence.

The whole thing stems, as is often the case, from a police officer's decision to enter a house without a warrant. The trial court held an evidentiary hearing and found that the officer's belief that someone was inside the house in need of immediate aid to be objectively unreasonable. Six years later, seven judges who sit four hundred miles and three states away -- not one of whom has served as a trial judge -- disagreed. The one justice who *has* presided over any significant number of trials and evidentiary hearings, Justice Sotomayor, dissented.

The majority's rationale is captured in a sentence on the final page of its opinion: "It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here." Justice Stevens dissented (joined, again, by Justice Sotomayor). "[I]t is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind," Justice Stevens wrote. "We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court."

It's surprising that there were only two dissenting justices here. I'm ready for just about anything, but a universe in which any five justices can flip a state trial judge's findings of fact that they find disagreeable or contrary "to the needs of law enforcement", that's a bit much even for me.

*Kidding!

Decisionism Is Just Like Mark Sanford*

Remember how Martha Coakley argued in the U.S. Supreme Court? The thinking at the time was that she did not do so well. Today, unsurprisingly, she lost. It's interesting, though, that the justice who asked her a question that nearly catastrophically tripped her up, Justice Kennedy, wrote an impassioned dissent supporting her position. So you just never know.

*In that it disappears for days and days without explanation. Thankfully, the similarities just about end right there.

Note To Self

Never, ever, ever do anything that attracts Nate Silver's attention. The thing of it is that mere mortals would read Prof. Mankiw's argument and say to themselves, "Hmm. Not such a good argument. But OMG he's way smart so I'll just take a flyer on this." Nate Silver is no mere mortal. He looks at the argument. He unpacks it. And then he blows it up into ten zillion pieces. Is he afraid of offending someone's grandmother? No. He is afraid of nothing. He is a magician with numbers. And he can write. Stay out of the man's way.

I suppose this is my first unofficial Sotomayor post. And I get this vague sense that one or two readers want to know what I think of Judge Sotomayor's nomination. Short useless answer: good pick. I like the fact that she's been an actual practicing lawyer. I like the fact that she's got Ramesh Ponnuru in such a snit that he feels the need to remind us that he graduated summa from Princeton, too. Finally: we have something in common! We've both said arguably true things we probably regret in front of large groups of Boalt Hall students!

Pro-Business Court? Eh.

No, no the U.S. Supreme Court's decision today in Iqbal v. Ashcroft, No. 07-1015, did not grant John Ashcroft, Robert Mueller, or anybody else blanket immunity for their actions in the aftermath of September 11, 2001. That just is not what happened today. If you want to understand what *did* happen, go over to Scotusblog and read Lyle Denniston. After that, you're on your own.

The decision is more interesting, at least to me, because it involves the Supreme Court's first exploration of the new pleading standard that it announced in Bell Atlantic v. Twombly. Before the Twombly case, the question was whether the plaintiff could prove "no set of facts" that would entitle it to relief. This was a bit tough from a metaphysical standpoint, the whole proving a negative thing was confusing, etc. It also allowed a lot of cases to make their way into discovery. So people -- at least those who didn't represent plaintiffs all the time -- were fed up.

The new standard requires the plaintiff to show that it has "a plausible claim for relief." The Court endorsed the 2d Circuit's formulation of what (the heck) this means: "Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." (Page 15).

Once they figure out that this is what really happened today (as opposed to Loook! There's John Ashcroft! Booooo!), at least one very smart person on the left side of the legal spectrum will decry this holding as being yet another example of the Roberts Court's pro-business leanings. And I will want to agree with that person.

But it just isn't, er, plausible. First off, businesses file lawsuits, too. And some of those suits are based on some pretty flimsy facts to which discovery will (they hope) add necessary heft. Second, though, if the Court's motivation is to help businesses, they've done a very poor job of it in the Twombly and Iqbal cases.

Here's why: businesses crave certainty. They want to know what the best-, worst-, and medium-case scenarios are when they find themselves embroiled in disputes. And they want to know before the scenarios actually happen. Twombly and Iqbal make this a much more complicated analysis than it was under the old pleading regime. Before, the advice was simple: "We can move to dismiss. It will be expensive. And we probably won't win because the judge will have to accept all the facts in the complaint as true. But it might be worth it because if we win, there's no discovery and that's when things get really expensive."

Now it's all about whether a particular district court judge thinks a claim is "plausible." And that will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." It's difficult to see a there there. Oh and it's not enough for plaintiffs to show a possible path to victory. You'll have to do something that "nudges" your clients' claims "across the line from conceivable to plausible."

So what do we know? We know that possible isn't enough. We know that conceivable isn't enough. Plausible is enough. But what's plausible again? That depends? How does that help anybody?

See! Some Lawyers *Can* Write

The Supreme Court's decision in Nken v. Holder, No. 08-681, is worth a quick look for a couple of reasons. The issue is whether a "stay" is the same thing as an "injunction". Seven justices say no, they aren't the same thing. Two of these seven concur and write separately. And two of them dissent.

The first interesting aspect of this case is the lineup. Justice Roberts writes the majority opinion (more on that in a second). He is joined by, er, Justices Stevens, Souter, Ginsburg, and Breyer. Weird, eh? Doesn't happen a whole lot. Justice Kennedy writes a concurrence and he's joined by . . . Justice Scalia. That doesn't happen a whole lot, either. Justices Alito and Thomas, finally, dissent. This is less weird.

The second interesting aspect of the decision is that Justice Roberts' majority opinion is really well-written. Especially that first paragraph. There are still way too many lawyers who insist upon writing like it's 1899. Part of this is law school, where often-unintelligible opinions written a million years ago are fetishized in large part because it's nearly impossible to figure what in the world the judge is talking about. And part of it is arrogance: we write like crap because they took our powdered wigs away from us and we need some other way to differentiate ourselves from the masses. But opinions like this one by Justice Roberts -- clear, simple, logical, and no longer than it needs to be -- come along every once in a while. We'll take them where we can get them.

Scalia v. The English Language

This is why people adore lawyers.

Today's majority opinion in Entergy, Inc. v. Riverkeeper, Inc., No. 07-588,* contains the following sentence penned by Justice Scalia: "But minimize is a term of degree and is not necessarily used to refer exclusively to the 'greatest possible reduction.'" Page 11 (emphasis supplied).

This stinks a little bit of something, doesn't it? Justice Scalia gets some help from one online dictionary. Not so much from two others. The problem really is that "reduce" and "minimize" don't actually mean the same thing. Would our friends on the right be happier if Sarah Palin said "Gosh darn it, I will reduce your taxes!" or if she said "Doggone it, I'm gonna minimize your taxes!"? Can we stipulate that the John Galts of the world would be more pleased in the second scenario? And isn't insisting that "minimize" doesn't refer to "the greatest possible reduction" a little, well, tricky?

*For more on this case, check out Scotusblog's typically excellent analysis here.

Some Of My Best Friends Are Supreme Court Justices*

What of Rep. Barney Frank's assertion that U.S. Supreme Court Justice Antonin Scalia is a "homophobe"? This may have been impolitic.** It may have been rude.*** But let's look at the data.

Here's what Justice Scalia said in his dissent in Romer v. Evans:

"This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality . . . is evil. I vigorously dissent."

And:

"Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before."

What was Amendment 2? It basically said that no city or town could pass legislation protecting gays and lesbians from discrimination.

Well, we've all said things we regret. But Justice Scalia doesn't regret a single morsel of what he said in Romer v. Evans. So a few years later, in Lawrence v. Texas, he said:

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Are these the words of a homophobe? Justice Scalia has at least one prominent conservative defender. But as of right now, most of the conservative corners of the blogosphere are so outraged by Rep. Frank's comment that they haven't even weighed in on it.

UPDATE (8:45 a.m.): Not quite outrage, but some typical pseudo-agnostic snark from the Instapundit.

UPDATE (10:14 a.m.): This, from the Corner, approaches outrage, but not head-on.

*Not really. That might be cool, though.

**No way. Barney Frank said something impolitic?

***See ** above.

Form, Function & Aesop

Lynn still has a race-based school assignment policy. Some parents filed suit against Lynn several years back and the First Circuit, en banc, upheld the policy in 2005. The parents appealed to the Supreme Court. The Court denied certiorari. And that was that.

In 2007, however, the Supreme Court struck down raced-based public school assignments in Seattle and Louisville "that bore a distinct resemblance to" Lynn's policy in Parents Involved in Community Schools v. Seattle School Dist. No. 1. Justice Thomas explicitly called out the First Circuit in his concurring opinion. He said that its decision on the Lynn case was "inimical to the Constitution."

So the parents sought to reopen their case. The trial court denied their request. Today, in Comfort v. Lynn School Committee, No. 08-1735, the First Circuit affirmed the trial court. The Court's reasoning, in short, is that when the Supreme Court denied review of the Lynn case in 2005, it was over. The Court concludes with a footnote that chides the plaintiffs and says all they have to do is file a new suit challenging the assignment policy. "With that option open but unutilized," writes Judge Selya, "the plaintiffs claims of inequity ring hollow."

This is entirely correct from a technical perspective. But is it really fair? Is the First Circuit putting form over function? Would it be less fair if the "inimical" comment had come in the Supreme Court's majority opinion and not a concurrence by Justice Thomas? And might there be an implicit recognition here by the First Circuit that just because the Supreme Court struck down similar policies in Seattle and Louisville, that doesn't mean the Lynn approach is unconstitutional? Or is it just that our commitment to the common law -- as in The Common Law -- will inevitably on occasion cause us to furrow our collective brow?

Credit Where Due. Maybe.

Justice Clarence Thomas has been the unwitting beneficiary of quite a bit of criticism in these virtual pages. So we must give him proper credit for his concurring opinion in Wyeth v. Levine, No. 06-1249. The basic issue was whether a plaintiff could bring a state law tort claim based on a faulty drug label where the FDA had approved the label in question. Six justices said yes. Three said no. And Justice Thomas did something not enough judges do. He supported a legal result that (probably) contradicts the public policy result that he would (probably) prefer and voted with the majority. So: GOOD JOB Justice Thomas.

If you want to be all cynical about it, ask yourself if Justice Thomas would have taken this principled stand if he'd been the fifth vote for the plaintiff here. Was Justice Kennedy's vote the platform that enabled Justice Thomas to leap out into the abyss? Just askin'.

One First Street Snow Globe

It's good that the Supreme Court posts opinion transcripts. Otherwise big nerds would have nothing else to post about on days that are a bit thin in the opinion department.

In any event, today the Court heard oral argument in District Attorney's Office for the Third District et al. v. Osborne, No. 08-6. The transcript is available here. You might have heard about the case. The shorthand issue is whether a person in prison should have a constitutional right to access DNA evidence after he/she has been convicted. The shorthand response is: "Yes. Duh." But this is not as simple a case as it seems. Consider the following wrinkles:

Wrinkle 1: The convicted guy, the respondent, has thus far not sworn under the pains and penalties of perjury that he is actually innocent and that a DNA test would exonerate him.

Wrinkle 2: The respondent had an opportunity to do a DNA test at trial and decided, on the advice of counsel, not to.

The transcript is fascinating in that it is the Court crystallized in miniature. Justices Ginsburg, Souter, and Stevens are generally sympathetic to the idea of a constitutional right to post-conviction DNA evidence. Justice Breyer spins out wacky hypotheticals and tries to find middle ground. Justices Roberts, Scalia, and Alito are generally unsympathetic to the idea of a new constitutional right.

Justice Thomas asks no questions.

And then there's Justice Kennedy. He's mostly quiet during the arguments of Alaska's Assistant Attorney General and the Solicitor General. Then, during the respondent's argument, he pounces. He sees the potential for criminal defendants to game the system, to "shoot the dice" and avoid DNA evidence at trial on the theory that they can always get it post-conviction.

When Alaska rebuts (pages 62-65), though, the entire landscape of the case changes. Justice Kennedy asks Alaska if it would provide the DNA evidence to the respondent if he submitted a sworn affidavit tomorrow. Alaska haws and hems. And this clearly upsets Justice Kennedy.

The question thus becomes: does it upset him enough to tilt the balance?

Coakley And The Supremes Deliver A Blow To Casino Gambling

Today the U.S. Supreme Court handed down its decision in Carcieri v. Salazar, No. 07-526. The issue was whether the U.S. Department of Interior could acquire land and hold it in trust for the Narragansett Indian Tribe even though the Narragansetts weren't federally recognized when Congress passed the Indian Reorganization Act in 1934. The case turns on a single word of the Act: "now". The nut of the issue is whether "now" means when the statute was enacted in 1934 or if it is ambiguous and can mean when the Department wants to acquire the land in question.

That's the legal issue. The practical issue is that casino gambling in Indian Country becomes a much tougher proposition under the former interpretation than the latter. The Supreme Court adopted the former interpretation, and the Mashpee Wampanoag are not happy about it.*

The Breyer concurrence (it starts on page 20) makes some sense. He notes that the guy from the Department of Interior who suggested the provision in question way back when "subsequently explained its meaning in terms that the Court now adopts." Of course, Justice Thomas, who wrote the majority opinion, does everything he can to discount the importance of this, er, pretty important fact. Why? Because he hates relying on legislative history that much.

An interesting side note here is that Attorney General Coakley signed on to an amicus brief in support of the Rhode Island position and against the Narragansett position. You can sort of see why she signed on to the brief. Acquisition by the Department of Interior effectively takes the land in question outside of her jurisdiction. But here's the rhetorical question: have we not done enough to screw over the Narragansetts (and the Wampanoags, the Seminoles, the Sioux, and on and on . . .) that we ought to let them build a casino? Or, like, a lot of casinos?

*Note to Matt Viser and the Boston Globe: there are nine Supreme Court justices. Three of them dissented, at least in part. So this was not a 6-1 decision. It was a 6-3 decision. Just because you didn't understand what two of the justices did doesn't mean you don't count their votes. Also: why no quote from Coakley? Finally: monitor your comments; some of them here are pretty offensive.

UPDATE (11:06 a.m.): Matt Viser corrects the vote count in his print piece. Still no quote from Coakley's office, though.

Elections Do Matter

A couple of years ago, the Supreme Court held that the 180-day limitations period for pay discrimination claims ran from the date that the employee receives her paycheck. This was true whether or not the employee knew that she was being paid less than her male counterparts. The case was Ledbetter v. Goodyear Tire & Rubber Co. Orin Kerr thinks it was a close call.

Justice Ginsburg dissented at the time and didn't think it was such a close call. Toward the end of her dissent, she wrote: "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad purpose. Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII."

That is exactly what happened today. Congress didn't just reverse the holding of the Ledbetter case, it kicked the case where it hurts. The law applies to all cases filed since the day before the Court decided Ledbetter. And in one of the whereas clauses, Congress states that the decision "ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended."

Supreme Court Causes Head Scratching

Just a completely bizarre lineup in Oregon v. Ice, Supreme Ct. No. 07-901. The issue, broadly stated, is the role of juries in sentencing decisions. The majority (Ginsburg, Stevens, Kennedy, Breyer, Alito) allowed the judge to impose a harsh sentence in a case involving sexual assaults of an 11-year-old girl. The dissenters (Scalia, Roberts, Souter, Thomas) said this determination should have been left to the jury.

It is really difficult to find the dividing line here. Can it really just be a matter of stare decisis? One thing is for sure, though: when you see Scalia, Roberts, and Thomas dissenting and making vigorous statements regarding the procedural rights of criminal defendants, something strange is going on.

Finally: apologies for the absence of posts thus far this week. Actual work must be done.

Light Cigarettes Are Bad For You Too Dept.

The United States Supreme Court issued its opinion today in Altria Group v. Good, No. 07-562.* The Court held that the plaintiffs' fraud claims against the makers of "light" cigarettes were not preempted by a federal cigarette labeling law. In other words, people can sue tobacco companies for claiming that light cigarettes pose fewer health risks.** Justice Kennedy swung this case to the left.

Though the plaintiffs in this case are from Maine, Massachusetts plays a supporting role.

One of the key precedents the majority had to find its way around is Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). That case concerned Attorney General Tom Reilly's attempt to regulate cigarette advertising. The Supreme Court held that this is a job for the federal government, not the states. In today's decision, the majority states that the Lorillard case is distinguishable because it involved state regulation and this involves a private plaintiffs' common law claims.

We have one of these light cigarette cases pending in Massachusetts right now, Aspinall v. Philip Morris, SJC No. 9981. The SJC put it on hold until the Altria case was decided. So we'll see what happens there.

*As of now, this link loads v-e-r-y slowly.
**Feel free to be totally outraged by this or not.

Were There Any Whales In Grant Park Last Tuesday Night?

Two things leap to mind after skimming the Supreme Court's decision in Winter v. National Resources Defense Council, No. 07-1239.

First: if there was any doubt about how beaked whales would have voted (if, that is, they had hands) last Tuesday, this opinion puts that doubt to rest. The conservative majority basically threw our marine mammal friends under the bus so that the Navy could train for enemy submarine invasions.

Second: enemy submarines? Does Al Qaeda have submarines? We know North Korea does. That hasn't worked out so well for them. Is China an "enemy"? If so, point taken.

Questions, Answers, Preparation

Our Attorney General, Martha Coakley, learned yesterday that arguing before the United States Supreme Court is really, really hard. The issue in the case is whether the government needs to make the person who prepares a lab report in a criminal case available for cross examination. That, it seems, is the way they do it in California.

So Justice Kennedy asked how that's been working out in the Golden State. Good question, right? Especially when one of the arguments against requiring live testimony is that it wouldn't be workable.

Attorney General Coakley didn't have an answer to Justice Kennedy's question.

One of the keys to oral argument in appellate courts is coming up with an exhaustive list of potential questions from the judges and, of course, answers to those questions that help (or at least don't hurt) your case. A good way of filling in gaps in your list is to have a moot court. Or, if you're arguing before the United States Supreme Court, a *bunch* of moot courts.

Did that just not happen here? Or did the moot court judges not think of this question?

In Case You Were Wondering

For your information and contemplation on this Wednesday morning unlike any other, the age of each member of the United States Supreme Court:

Roberts: 53
Stevens: 88
Scalia: 72
Kennedy: 72
Souter: 69
Thomas: 60
Ginsburg: 75
Breyer: 70
Alito: 58

This is all fine and good. But the real issue is how much each of these justices like their work and their colleagues. For pretty much each of these nine, the answer is "a lot" and "a lot".* So don't go expecting five SCOTUS retirements or anything.**

*Totally uninformed guess!
**Expecting one or two retirements? More reasonable.

Tales From The Cryptic

The Supreme Court has reversed the 6th Circuit's determination that the Secretary of State of Ohio had to match voter registration rolls with department of motor vehicles records under a federal statute. The case is Brunner v. Ohio Republican Party, No. 08A332. This makes Democrats happy, because it probably means more people will be able to vote. It makes Republicans less happy, because they think that more people being able to vote means a greater chance of voter fraud.*

The decision is short and a little bit cryptic. But its basis is that the Ohio Republican party, nor any private person, can file suit under the statute in question. Helpfully, the Supreme Court provided no guidance on who or what can file such a suit. Maybe the Department of Justice?

*Like wolf attacks on humans since 1900, Republicans can point to precious few (any?) instances of actual fraudulent votes being cast.

When A Win Is Not A Win

As just about every sentient being expected it would, the U.S. Supreme Court today held in District of Columbia v. Heller, 07-2901, that the Second Amendment confers an individual right to possess a firearm. Given that this amendment was tucked in, oh, the Bill of Rights, this should really not be a controversial conclusion. It's slightly amazing that this was even an issue.

The opinion, on page 57, contains a massive qualification, however. The Court says that "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." And then, in the next paragraph on page 58, the Court says that the Second Amendment doesn't protect possession of "dangerous or unusual weapons." Justice Scalia's example of a "dangerous or unusual weapon"? An M-16. Wow.

Thus the title of this post: When a win is not a win. The Court today may have struck down the DC handgun ban, but it signaled that it would uphold many of the laws that gun enthusiasts have claimed violate their Second Amendment rights. So if the celebration seems muted today, this post should help explain why.