Tag Archives: SCOTUS

Six Unworthy Amendments

Six Amendments is a disappointment.

I took issue with Justice Stevens’s proposed amendments in my first post on the book, before it was released. I stand by my criticisms of the campaign finance, gun control, and death penalty amendments – they are poorly written, and for the most part would not provide the clarity judges need to make consistent, predictable rulings. (I actually have more of a problem with his campaign finance amendment after reading the book – any reasonable reading seems to allow the government to prohibit publishing books, if it so chooses, so long as the book is plausibly connected to an election.)

The other three (gerrymandering, sovereign immunity, and commandeering) have more distinct problems: I’m not convinced that the anti-commandeering rule is as harmful as Stevens claims, and he made no effort to present the arguments against his position, so I don’t fell informed enough to make a decision. Most importantly, I’m not clear what effect (if any) his amendment would have on the scope of Congress’s ability to act outside its enumerated powers.

The argument against states’ sovereign immunity (unrelated to qualified immunity, as it turns out) has basically the same problem as the commandeering argument: there’s no analysis of the policy value of sovereign immunity. That said, it’s probably one of the strongest of his proposals.

The gerrymandering proposal is likely the strongest proposal – my only serious objection is that it is inelegantly drafted. By explicitly stating that strengthening one party’s control is not a valid, neutral purpose, he leaves a huge number of equally poisonous angles (i.e. the protection of incumbents) open to litigation, if not acceptance.

Predictably, since the amendments are sloppily drafted, there’s no redeeming the rest of the book. Stevens goes into some depth on the history of how the law reached its current state (arguing, in each case, that dissents he wrote or joined would have prevented this outcome), but as I noted, he spends little or no time discussing the wide variety of possible solutions to each problem, and the arguments for or against each one. Even worse, he spends no time arguing for his phrasing by addressing different ways his proposed text might be interpreted by judges in the future. Even for a rank purposivist such as Stevens, the flaws and ambiguities in his text should be clear and important.

Overall, the book is unambitious, and unworthy of its premise. When one promises to explain “How and Why We Should Change the Constitution,” especially when the promisor is a former Supreme Court Justice with a broad-ranging knowledge of the legal issues facing the country, it seems reasonable to assume the pool of possible topics is wider than “dissents I’m still mad weren’t majority opinions.” Stevens didn’t follow through on that at all.


In which I contradict a Supreme Court Justice (ret), without having been able to read his complete argument.

As the title suggests, this post is entirely speculative, and will probably be wrong on several counts. But that’s never stopped me before.

Former Supreme Court Justice John Paul Stevens has a new book coming out in April: “Six Amendments: How and Why We Should Change the Constitution.” I wasn’t particularly impressed with Stevens’s last book (Five Chiefs), but I’m intrigued by this one – it should benefit from having a narrower focus, rather than reflecting on a long judicial career.

Author Josh Blackman has a review copy of the book and posted the six proposed amendments here. He hasn’t posted a response to the actual arguments in the book yet, since he wants to read it first.

I don’t have that kind of sense, so here are my quick reactions to the text as presented in Blackman’s post:

  1. “Commandeering” of state officials: Apparently a reference to Printz v. US, which I’m not familiar with, so no comments.
  2. Gerrymandering: Protecting elections is an appealing (and predicted) target, and I guess this would probably do some good. Complaints: I’d like to see some explicit requirement that districts be created by a body with no stake in their composition, and the “enhancing or preserving the political power of the party in control of the state government” language is probably too narrow; the necessity of including it suggests weakness in the rest of the proposed text.
  3. Campaign finance: Another obvious target. I like this avenue better than trying to insert clarifying text directly into the First Amendment, and Stevens (thankfully) doesn’t fall into the trap of only focusing on corporate spending. But the language here is ambiguous, and seems either entirely too broad (broad enough to limit protected political speech to standing on a soapbox in the park), or to re-create exactly the hard money/soft money distinction that used to exist, where only speech that explicitly endorsed or opposed a particular candidate in a particular election was regulated. That might not be a bad regime to have, compared to our other options, but I’m not sure it would really change the importance of fundraising in elections, and the speech costs (depending on where Congress sets limits) might be substantial.
  4. Sovereign immunity: Not an area I know well, but I’d be curious about whether this has any effect on determinations of qualified immunity. I’d love to see an amendment that clarified and expanded the opportunities for Bivens suits (suits for damages against state employees for violations of an individual’s constitutional rights).
  5. The death penalty: Again, the topic was predicted – Five Chiefs includes substantial discussion of Stevens’s personal journey on the death penalty. Inserting this into the 8th Amendment is the wrong way to go, though – as worded, this basically inserts a factual finding that capital punishment is cruel and unusual – which may be true, but isn’t really the kind of thing that should be inserted into the constitution. It could(?) also drive judges to a particular interpretation of “unusual” – perhaps one which takes more account of international norms, since the death penalty is not unusual in the US. Would be cleaner & better practice to insert a separate amendment, “Neither the federal government, nor any state or subsidiary government of a state, shall execute any person in punishment for any crime, including Treason.”
  6. The Second Amendment: Obviously any change is DOA, but more importantly, this phrasing is stupid. Placing gun rights in the context of militias is outdated, and accomplishes nothing except perpetuating the confusion caused by associating gun rights with militias.More importantly, I don’t think tying gun rights to service in a militia clears up any interpretive ambiguity. What defines service in a militia? If Wyoming wants to create a volunteer militia that anyone can join by just signing up online, may it do so? If it does, can the Feds then regulate the weapons available to such a militia? Aren’t militias traditionally a matter for state regulation?Seems like a better phrasing would be to delete the militia entirely, and insert text that recognizes some sort of individual right to bear arms (in line with Heller and McDonald) – but which explicitly allows for rational-basis regulation: “The right of persons to keep and bear arms, in accordance with such rational laws and regulations as Congress and the States may create, shall not be infringed.” (Basically, if I’ve written that coherently, people who choose to carry weapons in accordance with the law should be protected from arbitrary government interference with their activities on that basis alone.)

Other notes: I’m disappointed not to see something dealing with executive powers, especially in wartime. If there’s any chance that we will continue in a state of perpetual semi-declared war (and there is), and if Presidents will be tempted to use that war to disregard the basic rights and liberties of citizens and noncitizens alike (they will), we ought to have clearer constitutional boundaries on the conduct of those wars.

I also would have liked to see Stevens address how the Fourth Amendment might be changed or clarified, to respond to the possibility of perpetual, suspicionless surveillance. The Court has muddled through, to a certain extent, but technological advances seem to have so broadened the realm of the possible that an explicit protection from generalized surveillance, even in “public,” would be worth including.

A new candidate for the pantheon of crap jurisprudence

Today, in Florence v. Board of Chosen Freeholders, the Supreme Court held that detention officials may strip-search any person arrested for any reason, if that person is being held in the same room as other people. They offered as rationale only the notion that judges do not know how to run a jail, and shouldn’t underestimate the difficulty of doing so. Given that, it would apparently be irresponsible to require any level of reasonable suspicion before a strip search is allowed.

I’d been waiting for this decision for a while, and when I heard the ruling I really hoped there was more to this case. I respect most of the conservative Justices (those in the majority here), particularly Roberts and Scalia, and I really wanted there to be some obscure legal justification that would validate that respect.

There isn’t. If there was, SCOTUSBlog’s incomparable Lyle Denniston would have found it.The majority abdicated its responsibility to enforce (or even, it seems, to read) the Fourth Amendment. There is no other word for this decision than “disgrace.” Justices Thomas, Alito, Scalia, Roberts, and most of all Kennedy, you should be ashamed.

The one bright spot I see in this particular case is that the ruling is amenable to legislative remedy–it articulates merely a constitutional permission, rather than a constitutional duty. Right-minded states may enact statutory prohibitions on unreasonable searches (i.e., searches that are not founded on any reasonable suspicion). The federal government, it seems, already follows a more rational set of rules. Florence may, therefore, end up being less destructive than other recent misapplications of the law (I refer to Citizens United, which appears to require remedy by constitutional amendment). It remains, however, a gross miscarriage of justice, and may be expected to take its place in the pantheon of the Court’s most absurd and embarrassing decisions.

SCOTUS and the ACA

Cross-posted (with minor modifications) from New Health Dialogue, because I rather like this post.

Various groups, including the Attorneys General of twenty-six states, the National Federation of Independent Businesses, and several individuals, have sued the federal government over parts of the Affordable Care Act. Specifically, they’ve alleged that the mandate requiring individuals to purchase health insurance is unconstitutional — it overreaches the enumerated powers of the federal government. The case was recently accepted by the Supreme Court, with oral argument scheduled for March and a decision likely by the end of June. If the Court accepts the plaintiffs’ arguments, they could strike down the individual mandate (which could create huge moral hazard problems and be catastrophic for the insurance industry) or strike down the law in its entirety.

As the excitement builds for the coming arguments, Meghan McCarthy of the National Journal issued a call for opinions and predictions on the final fate of the individual mandate. Here’s my take:

The final ruling on the individual mandate is tough to forecast, but I’m fairly confident that the Court will not strike it down. The challenge is based on whether Congress’s power to regulate interstate commerce extends far enough to allow the federal government to require all citizens to purchase health insurance or pay a penalty.

The ruling will depend in part upon how the Court sees uninsurance: is it an active choice for an individual to go bare, in effect to self-insure, or is it due to inaction? The precise definition of action and inaction is murky, but here’s how the argument goes: If going without health insurance is inaction, the Court has to deal with the messy question of whether Congress can regulate inaction when it affects interstate commerce. (Throughout the case, opponents of the Commerce Clause justification for the individual mandate have asked the government just how far Congress’s power stretches. Their favorite example has been the purchase of broccoli: can Congress require everyone in the country to buy broccoli? So far, the government has not said “no” — after all, choosing to buy, or not buy broccoli affects a whole series of interstate markets for leafy green commodities.) I won’t weigh in on the validity of that argument, but I agree with the Cato Institute’s Ilya Shapiro that the government’s inability to establish a limiting principle for the Commerce Clause will likely prove problematic when this argument reaches the Supreme Court.

I actually don’t think the case needs to address the action/inaction question at all. Health care is, to a certain extent, sui generis in that there is no inactive choice. Going without health insurance is inherently different from going without broccoli, because everyone has some interaction with the health care system at some point. Even if you choose not to buy health insurance, there is a good chance that you will need health care at some point. You are in a car accident, you get brain cancer, you fall down your stairs and break your leg. Since virtually everyone will, at some point, need  health care (and must therefore have a way to pay for it), choosing to go without private or public insurance is, in fact, choosing to self-insure. Since choosing self-insurance is an action that affects interstate commerce, it’s clearly within Congress’s power to regulate.

Alternatively, the Court might just accept the notion that the mandate is a tax (since its only enforcement mechanism is a penalty), in which case it is unambiguously within Congressional power. That runs contrary to how the Obama administration messaged the bill when it was in Congress, but it might be more palatable to Justices who are uncomfortable with striking down the law, but who don’t believe in the expansive Commerce Clause power that the government’s position implies.

All legal analysis aside, I think the most important indicator of whether the mandate will survive is the record of decisions in the lower courts. The mandate is winning in most lower courts, and thus far the “liberal” case (that the mandate is constitutional) has persuaded several judges appointed by Republican presidents, but no judge appointed by a Democrat has bought the “conservative” argument and found it unconstitutional.  I’d be surprised if the Supreme Court decided to overturn such a majority of lower courts, and especially surprised if they do it 5-4 along party lines. Especially after Citizens United, at a time when public confidence in the Court is at historic lows, another seemingly-political decision would be deeply damaging to the Court’s reputation. If it’s a close vote, that could play a role in the decision.

Of course, there’s also a decent chance that the case won’t be meaningfully decided this year: part of the five and a half hours of scheduled argument concerns the Anti-Injunction Act, which might mean nobody can sue over the mandate until 2015 (when the penalty for uninsurance takes effect & people have to pay their 2014 taxes). On top of that, one of the plaintiffs went bankrupt, meaning she would probably not have standing to sue. The members of the anti-ACA legal team have asked to add two more plaintiffs, and the government isn’t opposing the motion, so the case will probably proceed for the moment.

Stand strong, SCOTUS

CSPAN and Sen. Chuck Grassley are pushing the Supreme Court to allow TV cameras in the court for the first time during oral argument over the Constitutionality of the Affordable Care Act.

I’m generally against allowing televised oral arguments, for pretty much the same reason most of the Justices are: it would show the court only in the most sensationalist of lights, by only reporting on its most politically charged cases. That ignores the overwhelming majority of the docket and presents a skewed vision of the Court’s purpose. It also makes the court more political–TV clips of the court would inevitably be excerpted into seconds-long sound bytes, and I have every reason to believe that networks would use that to tell their easiest, most compelling-to-the-clueless story: that the court is a radically partisan institution, making close 5-4 decisions on party lines.

And honestly, I like the element of mystery around the Court–I think it preserves the gravitas of the institution to have its official actions be its main public face, rather than the Justices-as-reality-TV-characters. It strikes me as an institution that benefits from such mystery, especially looking at what happened to the Presidency after Watergate (when public/media scrutiny increased dramatically).

So, given my objection to cameras in the court more generally, it should be pretty clear that I think televising the ACA oral argument is a terrible idea. It’s precisely the wrong kind of argument to televise in that it’s already a hot partisan issue, it’s reasonably likely to be 5-4, and you know damn well that nobody is going to watch all 5 1/2 hours on CSPAN. They’ll get 5 1/2 seconds of Scalia disagreeing with Kagan, and that’ll be the ball game.

So stand strong, SCOTUS. If you decide to let cameras in, do it right at the beginning of a term. Have some boring arguments first. Televise unanimous opinions. Make the first footage something that reflects the real work of the court–not the partisan side.