Supreme Court Breakfast Table: By Paul Clement, Walter Dellinger, and Dahlia Lithwick

the breakfast table
Supreme Court Breakfast Table
Kagan's hat trick.
By Paul Clement, Walter Dellinger, and Dahlia Lithwick
Updated Thursday, July 1, 2010, at 7:50 PM ET
--------------------------------------------------------------------------------

From: Walter Dellinger
To: Paul Clement and Dahlia Lithwick
Subject: How World Cup Soccer Explains the Supreme Court
Posted Wednesday, June 23, 2010, at 2:25 PM ET
--------------------------------------------------------------------------------

I am looking forward to spending the next seven days sharing thoughts with the two of you. Dahlia, I believe that this is the ninth year that you and I have conversed during the final week of the Supreme Court's term, but it's the first time we have been fortunate to have former Solicitor General Clement join us. Paul is no doubt familiar to Slate readers as the advocate who produces a total swoon from Dahlia every time he argues a case before the Supreme Court. Not undeservedly, I should add. Welcome, Paul.

This is yet again a Harmonic Convergence Week for judicial review, with debates over the role of the Supreme Court playing out in different venues as the Supreme Court's final opinions of the term are released just as the Senate confirmation hearings for Supreme Court nominee Elena Kagan begin. We can expect important Supreme Court decisions both tomorrow and again on Monday, right before Kagan's first appearance before the judiciary committee.

Events have conspired to heighten the tensions this term among the branches of the federal government. The first major decision of this term (technically, a hold-over from the prior term) was January's opinion in Citizens United providing corporations with a First Amendment right to spend corporate treasury funds to influence elections. This invalidation of an act of Congress led, you will recall, to the televised confrontation at January's State of the Union Address when President Obama referred to the justices seated on the front row as "political hacks in black robes," causing Justice Samuel Alito to leap to his feet and shout, "You lie!"

OK, I'm now being told that the encounter was somewhat less dramatic than that. Whatever. Nonetheless, the decision in Citizens United has in fact become a flash point for members of Congress who remember Chief Justice Roberts' assertion at his confirmation hearing in 2005 that his modest role would be to simply call balls and strikes. To some who support limits on campaign spending, the chief justice's opinion in Citizens United seemed less like an American umpire's calling strikes and more like the "phantom foul" decision by World Cup referee Koman Coulibaly that cost the United States a decisive goal in its match against Slovenia last week.

Of course, both sides in the court's Citizens United decision honestly believed they were correctly interpreting the Constitution. The case does, however, provide a vivid illustration that judging requires judgment. It is simply impossible to resolve the issue in that case—as in many of the cases the court will decide over the next week—by applying mechanical logic to general language of the Constitution.

There is another sense in which the cases at the end of the term seem FIFA-like. The arguments made by several litigants before the court this term may remind some observers of "flopping"—the favorite tactic of international soccer players who respond to the slightest bump (or even imaginary contact) from an opposing player by collapsing to the turf in order to provoke a penalty call against the other team from an empathetic referee.

At the bar of the court, litigants sometimes suggest their need for solicitous protection from the Supreme Umpires against bullies who would commit fouls against them. Sometimes both sides invoke the need for the law's protection. We see that, for example in Christian Legal Society v. Hastings, a case in which a law school has an anti-discrimination policy precluding official recognition of groups that discriminate against gay and lesbian students (among others). The Christian Legal Society, a group whose policies preclude full gay participation, sees itself as the victim of elite, secular discrimination against traditionalists who follow their religious dictates. Also pending before the Court is Doe v. Reed, a case noted recently by Dahlia in which Washington state referendum petition signers who seek to "protect traditional marriage" have asked the U.S. Supreme Court to keep their names secret. The forthcoming opinions in both Doe and Christian Legal Society are likely to provide a window into where the justices stand on the cultural question of whether gays or traditionalists have greater need for the court's protection against more powerful opponents who will pull on their jerseys when the court is not looking. (One of my colleagues admonishes me that the analogy to flopping seems to trivialize the very real claims of ill treatment by one or both sides of these disputes. His point is well-taken. I mean only to suggest, perhaps too lightly, the extent to which these controversies are marked by a sense from all sides of being victims in a larger, hostile culture.)

In any event, the World Cup is not the only distraction this week. When the Senate judiciary committee begins its hearings on Elena Kagan's nomination just after noon on Monday, both the senators' and Kagan's opening statements will compete for attention with major decisions— including whether the Second Amendment's "right to bear arms" applies to the states—that may have just been announced. Tuesday morning, when Kagan begins answering questions from senators, Monday's decisions will be fresh on everyone's mind. Will Elena have to pull an all-nighter Monday reading hundreds of pages of new blockbuster opinions? It would be a lot easier for her simply to log on to Slate Monday night and use our comments on the cases as her cheat sheet. But I guess if she were one to cut corners like that, she wouldn't be where she is today.

I look forward to exchanging headers with you.

Walter


--------------------------------------------------------------------------------

From: Paul Clement
To: Walter Dellinger and Dahlia Lithwick
Subject: A World Cup Court of Appeals
Posted Wednesday, June 23, 2010, at 5:41 PM ET
--------------------------------------------------------------------------------

Dear Walter and Dahlia,

Thank you so much for inviting me to join you in your by-now-famous end-of-the-term discussion. I have enjoyed reading your dispatches in past years, and I am more than a little honored to join your Breakfast Club.

I also want to thank Walter for getting us started with a World Cup analogy. While I rather doubt that Justice Antonin Scalia would concede that we have anything to learn from the soccer-playing nations of the world or the decidedly internationalist gathering in South Africa, I think Walter is on to something. As much as I love watching the World Cup every four years, there have been a couple of calls that leave me yearning for appellate rights, or at least instant replay. On the latter point, maybe the NFL has something to teach the world: Any system that gives referees the discretion to award Italy a penalty kick on the lightest of shirt tugs, while denying the United States a goal without so much as identifying which player committed the foul, raises questions about how much discretion we want referees and judges to have in our system. The chief justice would not have invoked a FIFA referee as his model for the judicial role—that is for sure. Thank goodness the Supreme Court must not only identify which player committed the foul but also explain the reasons for its decisions at length. Without those opinions, we would have a lot less to talk about this week.

And what a week it should be. As we enter extra time, also known as the final days of the Term, the Court has 11 argued cases yet to decide. Like Team USA, the court always seems to save its best for last. While I am not sure that any of these cases will rival Landon Donovan's 91st-minute goal for excitement, there are a handful that should be fascinating to watch. There are three I am looking forward to in particular. The first is the McDonald case about whether the Second Amendment applies to the states. By way of disclosure, part of my interest is parochial: I had 10 minutes at the podium in the case on behalf of the NRA. But even for those not representing a party to the case, the opinions should be fascinating: "The professoriate" will be watching closely for what the court says about "incorporation" doctrine, while the pragmatists will be looking hard at whether the court says anything more about the standard of review courts should apply in evaluating challenges to firearm restrictions.

Walter alluded to some of the conflicts among the branches. The Supreme Court will get a chance to wade into separation of powers considerations in the Free Enterprise case concerning the constitutionality of the Public Accounting and Oversight Board introduced by Sarbanes-Oxley. This is the sole remaining case Solicitor General/Supreme Court nominee Kagan argued herself. It will also give us real insights into whether there is a working majority on the court for a "formalist" approach to the separation of powers. If that is the case, the consequences could be significant.

The final case—or cases—that I will be watching closely are the so-called honest services cases. Many think the court may be poised to strike down a portion of the federal anti-fraud law as unconstitutional. If that happens, it will beg the question whether Justice Scalia has become a criminal defendant's last best hope at the Supreme Court. He seemed to be leading the charge at oral argument and even last year in a dissent from a cert. denial, and his opinions on both Apprendi and the Confrontation Clause have been strikingly pro-defendant. If the court goes this route, it will also be worth watching how the court's decision to cut a break to Conrad Black and Jeffrey Skilling plays with an increasingly populist public.

And, of course, even beyond the cases, we have Justice John Paul Stevens' final appearances on the Supreme Court bench and the spectacle of the confirmation hearings come Monday. All this, and the Beautiful Game live from South Africa: What more could a Supreme Court watcher and World Cup enthusiast ask for? Dahlia, do you share our enthusiasm?

Best,
Paul

Like Slate on Facebook. Follow us on Twitter.


--------------------------------------------------------------------------------

From: Dahlia Lithwick
To: Paul Clement and Walter Dellinger
Subject: Does the Internet Change Everything?
Posted Thursday, June 24, 2010, at 3:25 PM ET
--------------------------------------------------------------------------------

Seriously. Seriously? I am doing an end-of-term Supreme Court dialogue with two men whose first name was "General" for a while, and they're going to make me talk about soccer? It's going to be a long week. ... Paul, welcome to Slate. I am, as Walter notes, a huge fan. And Walter, please recall that I am an equal-opportunity swooner. It's so good to have you back to surf these last days of June with me again. When we started doing this dialogue nine years ago, we were only just beginning to imagine how the Internet would change everything, including Supreme Court coverage. This morning I wonder how the Internet will change doctrine.

The court just unloosed a tidal wave of decisions this morning, including the honest-services cases Paul was anticipating (Skilling, Black, and Weyhrauch); as well as Morrison v. National Australia Bank. Paul, you asked in your post yesterday how the "court's decision to cut a break to Conrad Black and Jeffrey Skilling would play with an increasingly populist public." The court's decision to limit honest services fraud to cases involving bribery or kickbacks has certainly heartened the attorneys for the convicted. And Sen. Patrick Leahy says in a statement today that in Skilling, the "court has once again disregarded the will of Congress and undermined those efforts to protect Americans from abuses by powerful corporate and political interests." So I suppose there's your answer. We just need to see if that criticism sticks.

Walter, in your first post you wrote about the pending decision in Doe v. Reed, and what you characterized as some of the "flopping" cases at the court this term; cases in which groups argue for extra protection from the courts based on their unpopular viewpoints and a fear of retaliation. We now have our answer in Doe v. Reed, and it appears that by an 8-1 margin the current court is unwilling to protect the privacy of the 138,000 people who signed a state referendum petition. Background: Washington state passed a law giving "everything but marriage" benefits to same-sex couples. A group called Protect Marriage Washington organized a petition drive to repeal it. The repeal failed. The state's public records act would have permitted all those names to be disclosed, and Protect Marriage Washington argued that compelled disclosure of their signatures burdened their First Amendment rights and chilled political participation. They worried about harassment and reprisals similar to those experienced by the supporters of Proposition 8 in California.

Today, Chief Justice John Roberts, writing for the court, finds that the public disclosure of the names of signatories to referendum petitions does not necessarily violate the First Amendment and notes that the state's interest in preserving the integrity of the electoral process is important to rooting out fraud. Roberts argues that the disclosure of signatures in most referendum petitions wouldn't lead to the kinds of reprisals alleged in this case, but he is careful to say that the plaintiffs can still seek to be exempted from the disclosure rules in this specific case. Justice Samuel Alito writes separately to point out that these particular plaintiffs have a strong argument that the state's Public Records Act violates their First Amendment rights. Alito says if all this information were posted on the Internet, anyone with access to a computer could find the names of signers' spouses, phone numbers, driving directions to their homes, the price of their houses, and their children's school information. Writes Alito: "The potential that such information could be used for harassment is vast."

Justice John Paul Stevens disagrees: "This is not a hard case." He says. "It is not about a restriction on voting or on speech and does not involve a classic disclosure requirement." And Justice Antonin Scalia, echoing the rippling-bicep view of civic courage to which he gave voice at oral argument, observes: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed." He does not, he writes, "look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble" he warns," the Home of the Brave."

Which brings us to the lone dissent, from Justice Clarence Thomas. Thomas argues that the state of Washington's policy of disclosing all referendum signatures is unconstitutional because there will always be a narrower way to vindicate the state's anti-fraud interests. Citing the "vital relationship between" political association "and privacy in one's associations," Thomas says that Washington needn't post all of a signer's information on the Internet in its effort to prevent fraud. Like Alito, he warns that "the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed." He also warns that that "disclosure permits citizens ... to react to the speech of [their political opponents] in a proper—or undeniably improper—way long before a plaintiff could prevail on an as-applied challenge."

Floppery factor, Walter? I can't decide. At oral argument, I found Alito and Thomas to be extremely (even irrationally?) worried about the crazed folks who lurk online, although I'm not completely persuaded by Scalia's argument that if you can't shout your political views from the rooftops, you're too big a wuss for American democracy. The court seems to think that the ballot referendum is the determinative factor here. But I suspect for some of them it's actually the Internet that's changed everything.

Looking forward to your thoughts on this, Skilling, and soccer.

Best,
Dahlia


--------------------------------------------------------------------------------

From: Paul Clement
To: Dahlia Lithwick, Walter Dellinger
Subject: A Good Day To Be a CEO
Posted Thursday, June 24, 2010, at 6:03 PM ET
--------------------------------------------------------------------------------

Wow. I thought briefing schedules could be tight, but this working on deadline is excruciating. How do you do this, Dahlia?

It will take me a while longer to digest the Supreme Court's opinion in Skilling v. United States, what turned out to be the lead case of the court's "honest services" trilogy (not as long as it will take me to adjust to the reality that the defending champs, the once-feared Azzurri, are out of the World Cup, but a while nonetheless). For one thing, the opinions in the Skilling case alone are more than 100 pages, and the lineup is interesting as justices flipped-flopped from the majority to the dissent on the two major issues in the case. Hats off to Justice Ruth Bader Ginsburg for being able to keep a five-justice majority on each issue, even though only Chief Justice John Roberts joined her opinion in full.

One thing is clear: It was a good day to be a CEO before the high court. Both Jeffrey Skilling and Conrad Black scored at least partial victories. To be sure, Skilling lost in his effort to throw out his convictions completely based on the refusal of the trial court to transfer his case out of Houston. On this issue, Ginsburg was joined by the court's conservatives, while Justice Sonia Sotomayor wrote a 40-page dissent joined by Justices John Paul Stevens and Stephen Breyer. I focused more on the honest-services issue than this venue issue, but the one principle that emerges clearly is that it is a lot harder to win a change-of-venue motion if you commit a notorious crime in a big city like Houston instead of a small town. Maybe the fact that the justices are increasingly from big cities on the Eastern seaboard does have an effect on their decisions.

But although Skilling failed to win big on the venue issue, the court did trim way back on the scope of the honest-services provision of the federal government's two principal anti-fraud statutes, concerning mail and wire fraud. Just how much this trimming back will help Skilling and Black will be determined by the lower courts, but there is no question this was a big loss for the government. Indeed, not a single justice accepted the federal government's view of the statute as reflected at argument and in the jury instructions in the two high-profile prosecutions. The court divided on the issue of whether the statute should be substantially narrowed or thrown out entirely. On this issue, it was Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas flanking the rest of the court. They would have issued an even more pro-criminal-defendant ruling and thrown out the statute in its entirety.

There are two interesting issues raised by the court's disposition. But first a little more background on the statute and the decision. The classic case of fraud involves deceit that mulcts the victim out of some money. But what about a fraudulent scheme that less clearly tricks an identifiable victim out of money? Suppose a government employee has the power to award a valuable contract, but the price of the contract is fixed—the government will pay the contractor $1,000. If the employee takes a $100 kickback to award the contract to a relative, is there fraud, even without an obvious victim? It sure feels like there is, which is why lower courts held that this kind of fraud, labeled by some as honest-services fraud because the government worker deprives the public of his or her honest services, was covered by the basic anti-fraud statutes.

But along came the Supreme Court in 1987—feeling a little more textual with the then-recent addition of Justice Scalia—to call a halt to such prosecutions. The court held in a case called McNally that, unless Congress intervened, the statute would be limited to more traditional fraudulent schemes. Congress did not take long to respond and enacted the language at issue in today's opinion. Specifically, Congress "made clear" that for purposes of the mail- and wire-fraud statutes, "the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

Clear as mud, all nine justices agreed today. Six said the statute was vague and had to be limited to the bribery and kickback schemes believed to be at the core of the conduct Congress sought to criminalize in responding to McNally. Neither Skilling nor Black was involved in a classic bribery or kickback scheme, so this was good news for them, although the court left the task of figuring out just how good the news really was to the lower courts. The three dissenters said the statute was so vague it had to be thrown out entirely.

Two things seem particularly interesting about the court's disposition. First, by narrowing the statute rather than invalidating it, and by leaving the lower courts to sort out the details, the court may succeed in blunting some of the backlash that could have come from a decision freeing Skilling and Black and invalidating the statute even when it comes to bribery and kickbacks. Second, the back-and-forth between Ginsburg's majority opinion and Scalia's dissent really goes to the heart of the proper role of the court in responding to problematic legislation. Every justice agreed that the phrase Congress actually used—"the intangible right to honest services"—was impermissibly vague. All nine would have also agreed that terms like bribery and kickback are clear, and are not normally mere synonyms for "the intangible right to honest services."

But from that common starting point the justices came to very different conclusions: the majority salvaged what it identified as the core of what Congress hoped to criminalize, while the dissenters would have sent Congress back to the drawing board. It will be interesting to see how Congress reacts. Perhaps Congress will respond to augment the narrowed statute that emerged from the majority opinion. On the other hand, there is no question that Congress would have responded swiftly if the court had invalidated the provision entirely, and Congress probably would not have stopped with just prohibitions on kickbacks and bribes. Beyond all that, the dissent does show Scalia in his pro-criminal-defendant mode.

Walter, I know your firm was involved in Skilling and so you may be constrained in what you can say. But I would be fascinated by your reaction to this landmark criminal law decision. And Dahlia, since you seem less distracted by the World Cup (my son accused me of "double-screening" during the Italy game as I tried to get results from First Street and South Africa simultaneously), I am guessing you have had more time to read the court's opinions. What did I miss in focusing on Skilling?


--------------------------------------------------------------------------------

From: Walter Dellinger
To: Paul Clement and Dahlia Lithwick
Subject: These Justices Don't Care What Other People Think
Posted Friday, June 25, 2010, at 11:05 AM ET
--------------------------------------------------------------------------------

One message from two of Thursday's decisions is that the Supreme Court doesn't seem to care what the lower courts have done with an issue. In both Skilling v. United States and Morrison v. National Australia Bank, the court has shown a willingness to go to first principles and reject approaches that the courts of appeal have followed for decades. When a law has been on the books for a good while and generated numerous cases, the courts of appeal elaborate increasingly complex tests that often gravitate further and further from the statutory text. The courts of appeal follow one another, and everyone comes to accept the line of cases as set in stone.

The Supreme Court, however, is wholly prepared to ignore what the courts of appeal have done and take a fresh look based on first principles. The lesson for Supreme Court litigators is: Don't be afraid to make arguments to the Supreme Court that no previous courts have accepted.

Morrison and Skilling are striking in that regard. In Morrison, the court held that investors who purchase securities on foreign stock exchanges couldn't sue in U.S. courts for violations of U.S. securities fraud laws even where some of the acts that contributed to the fraud occurred in the United States. In an opinion by Justice Antonin Scalia, the court said flatly that it would not assume that Congress wanted U.S. securities law to govern such purchases, even though the investors claimed that the books were cooked in Florida and the fraud had "effects" in the United States. The U.S. securities fraud law, the court held, only protects investors who make securities purchases in the United States.

The majority did not disagree with Justice John Paul Stevens' statement in his concurring opinion that "federal courts have been construing [the relevant securities fraud provision] in a different manner for a long time." Stevens argued the court should adhere to the established approach "that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades." The court's majority, however, simply brushed aside the long-standing, complex "conduct-and-effects" test that had been elaborated in numerous decisions in the lower courts and replaced it with a simple test: Did the purchase itself actually occur in the United States? This test was based on text of the statute—a text that the courts of appeal seem to have lost sight of long ago. So much for decades of lower court law.

In Skilling (ably explained by Paul's posting), my law firm colleagues pressed the argument that the statutory crime of denying anyone of the "intangible right of honest services" was unconstitutionally vague unless it was sharply limited to bribery and kickbacks. Given that the honest-services statute had been the basis of hundreds of prosecutions that had been upheld in every federal court of appeals, it may have seemed an unlikely gambit to challenge its constitutionality at this late date. The fact that all nine justices agreed that this long-standing and frequently invoked law was unconstitutionally vague suggests once again that litigants should not take law "settled" by court of appeals as a given. The fact that the Supreme Court swept aside the law in virtually every federal appellate circuit in both of Thursday's cases without breaking a sweat is a reminder that this court is called "Supreme" for a reason.

Come Monday, when the court decides whether to accept Paul's argument that the Second Amendment now applies to every state and local government, will we have further evidence (for better or worse) of the court's supremacy?

Like Slate on Facebook. Follow us on Twitter.


--------------------------------------------------------------------------------

From: Walter Dellinger
To: Paul Clement and Dahlia Lithwick
Subject: Is There Even a First Amendment Issue in Doe v. Reed?
Posted Friday, June 25, 2010, at 5:52 PM ET
--------------------------------------------------------------------------------

Dear Dahlia and Paul,

It seems to me that the shadow of the Tea Party hangs over the court's decision in Doe v. Reed, and that the issue of making law by anonymous petitions that trigger popular referenda is going to be with us for a while.

This case is not as lopsided as the 8-to-1 vote against the traditional-marriage advocates would suggest. It's true that only Justice Thomas agreed with the claim that it violates the First Amendment in every case for the state, under its public-records law, to release the names and addresses of people who sign petitions to put propositions on the ballot. Here the particular proposition was that the state's new and relatively liberal gay-partnership law should be repealed by referendum. The court leaves open the prospect that when this case goes back to the lower court, the marriage traditionalists may still be able to show that if their names and addresses are released, they will face harassment from some gay rights supporters that will have a chilling effect on their First Amendment rights.

There is a fundamental question the court fails to explore in any depth: Does this case even raise a true First Amendment issue? It is important to begin by being precise about what is triggered by signing petitions for a referendum under the laws of the state. If enough citizens sign a petition challenging a law enacted by the state legislature, the operation of that law is immediately suspended and does not become operative again unless a majority in a statewide election votes to keep the law. So signing an official petition is a legislative act with official legislative consequences.

Now, I agree that signing a petition is also clearly an act of expression. But the expressive part does not trigger a disclosure requirement. It is only when the citizen also wants his or her signature to be counted by the state as an official act for legislative purposes, such as suspending or canceling a law, that the public-records law requires identifying information to be revealed. To me, this is the key. The state does not prevent any citizen from expressing anonymously any idea he or she wishes to express. Nor does the state prevent citizens from withholding whatever identifying information (such as addresses and occupation) they wish to keep private when joining with other citizens in collective association or expression. Only the official act of submitting a petition as part of the referendum lawmaking process triggers disclosure requirements.

In supporting plaintiffs' arguments for anonymity, Justices Alito and Thomas cite the right to privacy of belief and association. But those rights are fully protected by the state except when the speakers wish not only to convey their views but also to have the act of signing become an operative part of the legislative process.

Surely a state can opt for an open legislative process. Otherwise, one of the hallmarks of American democracy—the town meeting—would be subject to attack as unconstitutional. Suppose a community decided not to have a referendum process but to provide instead for popular lawmaking by town meetings. The logic of some of the Doe v. Reed opinions would suggest that moving from a referendum to a town-meeting system would be unconstitutional because it would deprive people of this new First Amendment right to make law in secret. That can't be right.

It may well be the case, as Justice Thomas notes, that public disclosure of the names and addresses of referendum-petition signers will make successful resort to the referendum process less frequent and will thus reduce the total quantum of speech. But that argument seems to assume that there is some federal constitutional requirement that a state must have a referendum process. Yet states are free to have no process at all for lawmaking by referendum. None. Nor is there any First Amendment interest in frequent or successful referenda. States are free to have such processes only if an extraordinarily large number of signatures are obtained or only when a sufficient number of citizens are willing to stand up and be counted publicly in support of repeal or enactment of a law. These matters of preferred lawmaking process are for individual states to decide. The First Amendment has no dog in the fight over whether there should be more or fewer instances of popular lawmaking by referenda.

It is also a bit troubling that there will now be a fact-bound, case-by-case process used to determine whether petition signers will be guaranteed anonymity. It would have been better in my view to have adopted either of the definitive positions put forth by Justice Thomas (always) or Justice Scalia (never) than to have this fact-bound approach. (For a view somewhat contrary to mine, see Rick Pildes very insightful posting on Balkinazation.)

The case-by-case determination of whether a petition process will be "open" or "secret" has to be made early, so that those soliciting signatures can inform the first signers whether their names may be disclosed. But what basis will a judge have for predicting before a petition process begins that signers will be harassed? Sometimes, as in Doe, there might be useful information from similar referenda battles in other states. But more often a judge will have little more than her sense of whether the group seeking anonymity is really an unpopular or marginalized group. That places the judiciary smack in the middle of a culture war in which various factions, now including not just the usual suspects, but also conservatives on college campuses, traditional-marriage supporters, Christians, and others, are given new incentives to present themselves as oppressed. Whatever the justice of these claims, the process of deciding who needs or deserves anonymity could take the judiciary down a road with a lot of big potholes.

Might we expect more fireworks on Monday? With decisions coming on guns, gays, and Christians, how could we not?

Like Slate on Facebook. Follow us on Twitter.


--------------------------------------------------------------------------------

From: Paul Clement
To: Walter Dellinger and Dahlia Lithwick
Subject: Kagan-for-Stevens Changes Everything, Too.
Posted Saturday, June 26, 2010, at 7:09 PM ET
--------------------------------------------------------------------------------

Dear Dahlia and Walter,

Today, the World Cup moves into the knockout round. This marks the point at which people stop complaining exclusively about the referees and start complaining as well about the inherent arbitrariness of using penalty kicks to break a tie. Penalty kicks are dramatic, but they are hard to love. After more than two hours of a team sport, a few random individual kicks will dictate the outcome. The problem, of course, is that there is no good alternative. While I was fascinated by the marathon fifth set at Wimbledon, I am not sure playing until one team drops from exhaustion is the way to go. In all events, as we head into the weekend, I thought I would share a couple of random kicks of my own.

Walter makes an interesting point about the First Amendment interest at stake in Doe v. Reed, Thursday's decision about the forced disclosure of information concerning individuals who sign a petition to get a referendum on the ballot. Generally, we expect actions with legislative consequences to be taken on the public record. Asserting a right to privacy over such actions seems anomalous. But one of the interesting things about this case is that the state's interest on the other side of the ledger is also a bit unusual. The court identifies the state's interest in disclosing the names primarily as in preventing election fraud. The state certainly has an important interest in doing so, but it is not at all clear that is what this disclosure law was designed to do. After all, the law at issue, Washington state's public-records act, is not a provision of the election code specifically designed to fight election fraud. Instead, the law is essentially a state-version of FOIA—the Freedom of Information Act—which makes all public records subject to disclosure. It just happens that once signatures are submitted to the Secretary of State, they become public records subject to disclosure. As Justice Alito points out in his concurrence, Washington State had referenda for 60 years before it passed the public records act without any evident problem with fraud. The Washington law really seems directed more at sunshine in government—keeping the secretary of state honest—than at rooting out what we traditionally might think of as election fraud.

But as Dahlia suggested in her post, what ultimately makes this case interesting and difficult is the Internet. If all that was at stake here was whether someone could make a FOIA request and then read the results in the privacy of his or her home as a sleep aid, I am not sure this would have been a constitutional, let alone a Supreme Court, case. The potential for a FOIA requester to turn around and put the signatories' names and addresses on the Internet for all to see is what really changes the calculus. Justice Scalia invokes the image of the New England town meeting where the sturdy yeomen of democracy were willing to stand up and be counted. But you wonder whether even hardy New Englanders would have been indifferent to having their votes recorded for all the world to see and for posterity as well. The problem is certainly not limited to voting. I do not much care if people see me walking into a bricks and mortar store or even look into my shopping cart to see what I have bought. All of my actions take place in public, and it does not occur to me that I have much in the way of a privacy interest. On the other hand, if some company can start aggregating all my Internet purchases and know exactly which sites I go to and how often, the issue becomes a lot more complicated. There is, after all, a big difference between having a private e-mail exchange with a couple of friends and having the whole e-mail chain posted on the Internet. Oh, wait a minute, scratch that. In any event, I am not sure if privacy is even the right concept here, because whether or not the individual purchases are public at some level, it is the Internet's ability to aggregate data, make it available to every corner of the globe, and keep it there forever that raises distinct questions in this case. My guess is that such issues will occupy the court for years to come.

I also wanted to mention a decision that came down on Monday before we started this very public trialogue. The Supreme Court, by a 6-3 vote in Holder v, Humanitarian Law Project, rejected a First Amendment challenge to the material-support statute, one of the key tools in the government's efforts to use the Article 3 courts, as opposed to a military-justice alternative, to prosecute terrorism. While the decision itself is important, I want to focus on the fact that the vote was 6-3, and not 5-4. What kept this case from being a traditional 5-4 with Justice Kennedy joining the conservatives to uphold the government? Two words: Justice Stevens. It would be interesting to speculate what tipped the balance for Justice Stevens in this case. We are left to speculate because Justice Stevens joined the Chief Justice's opinion for the court in full—no separate concurrence emphasizing the narrowness of the court's ruling or what it does not mean. But speculation about the vote in this case aside, what is noteworthy to me is that this is not an isolated phenomenon. While most think of Justice Stevens as the very able leader of the court's liberal wing, he has broken with his liberal colleagues to provide a sixth vote for a seemingly conservative result in a couple of other high-profile cases. The Indiana voter ID case, Crawford v. Marion County Election Board, and Medellin v. Texas are just two examples. Although these were both sixth votes, not critical fifth votes, sixth votes matter, particularly with respect to how a case is perceived by the public. It was pretty hard to portray the Indiana case as Bush v. Gore II with Justice Stevens in the majority.

Those votes highlight two points worth remembering as we head into next week. First, as much as Justice Stevens has become a forceful and effective leader on the court, he has remained a unique justice with a distinctive voice to the very end of his tenure. Justice Stevens began his Supreme Court tenure as the justice most likely to write a separate opinion joined by no one else—and expressing a unique take on a case. Some of those lone dissents have become the law of the land; take a look at his 1997 dissent in United States v. Watts, a separate dissent from summary reversal no less, in which he lays out the basic argument that ultimately becomes Apprendi and its progeny. Others have remained the views of just one justice. But in all these cases, the court benefited from his unique voice. The second and related point is that anyone who thinks that replacing Justice Stevens with a soon-to-be-Justice Kagan will not affect the bottom line of any decisions or the court's dynamic cannot be that familiar with Justice Stevens' jurisprudence. Although the Kagan nomination seems to be getting drowned out by the BP spill, Gen. McChrystal (Walter, I think it is probably a good thing that Rolling Stone sticks to interviewing real generals), and, yes, even the World Cup, the Kagan-for-Stevens switch will have a real impact on the dynamic of the court.

Yours,
Paul


--------------------------------------------------------------------------------

From: Walter Dellinger
To: Paul Clement and Dahlia Lithwick
Subject: A Sad Day for the High Court
Posted Monday, June 28, 2010, at 8:10 AM ET
--------------------------------------------------------------------------------

Dear Dahlia and Paul:

What an extraordinary day in the life of the court this will be! In the morning hours, the court will announce the final four decisions—all major—of the term. When that work is done, John Paul Stevens will stand up and leave the bench for the very last time. Then, in the afternoon, the Senate Judiciary Committee will begin hearings that will surely lead to the confirmation of Elena Kagan to a court that will for the first time have three women among its justices.

There may be some cognitive dissonance between the events of the morning and this afternoon. Some senators will demand, as Kagan's hearing opens, that the nominee make pledges of judicial restraint while noting with approval that the court has announced just this morning that it will pass judgment on the gun restrictions of every elected state and local government in the country. And some senators will also condemn any resort to "policy" in Supreme Court decision-making fresh after a batch of opinions in which nearly all the members of the court are likely to discuss (as they did in the Doe v. Reed case last week, for example) the social or economic consequences or practical effects of competing resolution of the difficult cases that remain to be decided. And the nominee to a position that involves chiefly writing legal opinions will appear to have fewer opinions than any of the senators.

But in a more serious vein, a note of great sadness will accompany the historic events of the day. Only eight of the nine seats on the Supreme Court bench will be occupied. Ruth Ginsburg will not be there. Last night, Martin D. Ginsburg, her husband of half a century, passed away. He was a favorite of the entire Supreme Court community and a close friend to all of the justices. He was a great lawyer, an expert in tax law as both a practitioner at leading law firms and as a scholar and teacher at leading law schools. For these accomplishments alone he deserves to be well-remembered.

But there was something else that was special about Marty Ginsburg. He was a truly great feminist and a pioneer among men. He met Ruth Bader on a blind date when both were undergraduates at Cornell. They married during law school in 1954 and raised two children while juggling complex careers as young lawyers. Marty was the family cook. His ebullience was a perfect fit with Ruth's restrained dignity. He was, as she often said, her biggest supporter. He was unfailingly devoted to her and to her career. I happened to be there in 1993 when Marty Ginsburg became the first recipient of the Martin Abzug Award given by former member of Congress Bella Abzug in honor of her own husband, who had provided exemplary support to her aspirations. Many men have followed since. But there is a very special place for Marty Ginsburg who was there for his spouse so firmly and so early.

Yours,

Walter


--------------------------------------------------------------------------------

From: Dahlia Lithwick
To: Paul Clement and Walter Dellinger
Subject: Freud and the First Amendment
Updated Monday, June 28, 2010, at 8:13 AM ET
--------------------------------------------------------------------------------

Dear Paul and Walter:

Paul I'm so glad you mentioned Justice Stevens' vote in Holder v. Humanitarian Law Project. I think it's fascinating that the liberal lion in all the war-on-terror cases not only sided with the conservatives in this case but also did so without comment or reservation. Justice Stephen Breyer was so upset by the Holder decision that he read his dissent aloud from the bench last week. But Stevens' last word on war and executive power will be that (quoting the chief justice's majority opinion) "Congress and the executive (branch) are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not."

As we bid farewell to Justice Stevens Monday, it's so important to remember that he is the last veteran at the court. He cares about soldiers and how they are treated in wartime. He may simply approach battlefield cases very differently than he does anti-terror policy cases. Holder was a hard case, involving a statute aimed at designated terror groups and narrowed by Congress. But this wasn't a case about treating fighting men badly, and that may have made it different from the war on terror cases that came before.

You have both had such tremendous insights into Doe v. Reed and I do think that in some ways this whole case involved a debate about how the Internet has made privacy a completely different animal than anyone anticipated. The court squabbles about this point only in the margins yet it's clear that both Alito and Thomas believe that it's the Internet that has changed the publication of one's name online into something akin to an invitation to harass and bully. I don't think this is entirely wrong, but as both of you point out, it's very odd to be arguing this point in the context of free speech and election fraud cases. Which brings me to the one slightly Freudian observation I wanted to make about Doe v. Reed: How can we explain the vast distance between Justice Scalia's reading of this case and Justice Thomas? They could hardly have arrived at more different conclusions, about civic courage, privacy, and public threats, and I'd be interested in why you think that is so. It's not simply that they come out differently on the merits. They actually represent the two most extreme positions on the matter. Only Thomas believes that disclosing names of petition signers always violates the Constitution. And only Scalia asserts it never violates the Constitution. Why such a sharp split between two such frequent allies?

Here's my back-of-the-napkin suggestion, for whatever it is worth. I think Thomas' worldview is very much informed by his anxiety about the public. Between his unease about speaking at oral argument, the sense of a public betrayal that pervades his memoir, and his fondness for traveling the country in a refurbished tour bus so he can attend NASCAR races undetected, Thomas has always seemed almost painfully private, inclined to believe that this country will turn on you and destroy you and your reputation in an instant. He's constructed a public life for himself that is, above all, suspicious of public scrutiny. For his purposes, fairness ends when the public is invited in. Contrast that to Justice Antonin Scalia, who will go anywhere, debate anyone, speak in front of friends or enemies without much concern, and who—to the extent he gives the American public any thought at all—mostly just thinks we are adorably ill-informed and it's his job to school us on why. And the more of us he can influence the better. Democracy needs him to be brave. Maybe I am reaching here, but reading Scalia and Thomas in Doe side by side, I think you learn far more about their sense of themselves as public figures and their relationship to the great American masses, than you do about their approach to the First Amendment, the Constitution, or even judicial interpretation.

But I am shallow this way.

Anyone have any thoughts going into Monday? Looking forward to chatting tomorrow.

Yours,

Dahlia


--------------------------------------------------------------------------------

From: Dahlia Lithwick
To: Paul Clement and Walter Dellinger
Subject: Bow Ties, Long Summaries and the Ultimate Nerd Sandwich
Posted Monday, June 28, 2010, at 2:47 PM ET
--------------------------------------------------------------------------------

Dear Walter and Paul:

I am on skates today between decisions this morning at the high court and the Kagan hearing which has just begun—a state of affairs that I referred to yesterday as a "nerd sandwich." Just a few preliminary notes on this morning's court session: Ruth Bader Ginsburg was in attendance despite the death of her husband last night. The lawyers and press corps in attendance were aflutter with bow ties in tribute to Justice John Paul Stevens' signature style. The chief justice read a letter praising Stevens for having served for one-sixth of the court's lifetime, for his rigor and integrity and genuine collegiality. Stevens responded, as Tony Mauro notes, with a letter of his own that he prefaced with the comment that "when he joined the Court in 1975, a letter like his could have been addressed to 'Dear Brethren.' But with two women on the Court, Stevens decided 'Dear Colleagues' would be appropriate." Then he thanked his colleagues and said: "If I have overstayed my welcome, it is because this is such a unique and wonderful job. I wish you all the best."

The drama surrounding Ginsburg's loss, Stevens' last day, and the Kagan hearings about to open wasn't all of it though. There were a lot of strong opinions and passionate dissents today. Justice Breyer read aloud from his dissent in the Chicago guns case and in the Public Co. Accounting Oversight Board case. Justice Stevens read from his concurrence in Bilski, scolding the court for its "timid disposition" of the case.

I was struck by the length of Justice Alito's summary of his opinion in McDonald and equally struck by the fact that he pointedly argued that this was the view of the Second Amendment necessary to protect the newly freed slaves. Justice Breyer's dissent was equally lengthy, as was his summary of his dissent.

More on all this later as I try to absorb the Kagan hearing and McDonald at the same time.

Best,

Dahlia


--------------------------------------------------------------------------------

From: Walter Dellinger
To: Paul Clement and Dahlia Lithwick
Subject: A Question About the Precedential Value of the Chicago Guns Case
Updated Monday, June 28, 2010, at 2:50 PM ET
--------------------------------------------------------------------------------

This is one of the most consequential days at the Supreme Court in a long time, and we will have much to write about. But first, I want to raise a pressing question about McDonald v. Chicago. Is the precedential force of today's ruling—holding that the right to keep and bear arms is judicially enforceable against state and local governments—significantly weakened by the absence of a majority of the court on any one theory? Only four justices (Chief Justice Roberts and Justices Scalia, Kennedy, and Alito) agree that the Due Process Clause of the 14th Amendment "incorporates" the Second Amendment and makes it applicable to state and local governments. Only Justice Thomas believes that the Privileges and Immunities Clause of the 14th Amendment provides gun rights against the states. Together they make a majority to reverse in this particular case. But is this result entitled to stare decisis effect? Should subsequent justices consider it binding? Or is it a negative precedent in the sense that the five justices reject Alito's due process theory and eight justices reject Thomas's Privileges and Immunities approach? (Is "rejection" a fair characterization?) Would a subsequent justice be justified in saying that because there is no majority position on either constitutional approach, there is no ruling in this case entitled to future deference? Paul, you successfully argued this case for the NRA. Is there an opinion you can express?

I want to think about this issue of precedential effect a good bit more before offering an opinion. And there is much, much more to digest in today's rulings.


--------------------------------------------------------------------------------

From: Paul Clement
To: Walter Dellinger and Dahlia Lithwick
Subject: McDonald Went Far Enough for the Lower Courts
Posted Monday, June 28, 2010, at 6:43 PM ET
--------------------------------------------------------------------------------

What a day it has been. As Walter notes, the court's day began with a note of true sadness with the loss of Marty Ginsburg. I would refer to him as Professor Martin Ginsburg, but every time I tried to do that in person, he corrected me and told me to call him Marty. He was a legend at Georgetown Law and in tax circles, and a treasured member of the court family.

But as much as every member of the court would have liked to take the day off, there were opinions to issue, an orders list to hand down, and, as Dahlia notes, dissents to read from the bench. The first opinion to be read was the McDonald opinion involving whether the Second Amendment is fully applicable to the states. The answer of five justices was an emphatic yes. Indeed, five justices agreed that the first section of the Fourteenth Amendment made the Second Amendment fully applicable to the states, such that a state or local ban on handguns is no more constitutional than a comparable ban by the District of Columbia. There was, however, a disagreement among the justices in the majority as to which clause in that first section of the Fourteenth Amendment was the one that did the trick. That disagreement among the Justices in the majority took 111 pages to explore. Add to that 88 pages of dissents (92 if you count one of the shorter of five appendixes Justice Breyer included as bonus items to his two long dissents today) and Justice Scalia's 15-page response to Justice Stevens' dissent, and the opinions in this case weigh in at well north of 200 pages. The decision is a landmark if judged by length alone.

There is an awful lot of material here for the academics to chew on. At oral argument, Justice Scalia dismissed the privileges or immunities clause as "the darling of the professoriate," and law professors are already plotting their revenge or at least blogging on the various theories of due process interpretation on display and Justice Thomas' analysis of the privileges or immunities clause. Quite apart from the grist for the constitutional theory mills, the separate opinions also include some interesting historical analysis, especially of the Reconstruction era. One of the fascinating aspects of preparing for this argument was the opportunity to take a deep dive into this era that is so critical to the court's Fourteenth Amendment jurisprudence. I particularly appreciated that the court's opinion gave a shout-out for Charles Lane's book on the Colfax Massacre. It is a highly readable account of the unconscionable and almost unfathomable events that gave rise to United States v. Cruikshank, one of the court's critical privileges or immunity precedents.

But while the opinions are long on constitutional analysis and history, I think they are going to be less satisfying for the pragmatists who simply want to know, now that the court has found the Second Amendment fully applicable to the states, what does that mean as a practical matter? What can states ban? What can they not touch? On this score, the opinions provide relatively few clues. There are warnings in the dissents, but dissenting opinions will do that. Justice Alito writing for four justices on this point assures that "doomsday proclamations" are overstated, but in doing so, his opinion simply reiterates language from Heller to the effect that the decisions do not call into question every law affecting firearms. Thus, to the extent that court-watchers thought this decision would not only answer the incorporation question, but provide further guidance on the "standard of review" that would govern Second Amendment cases going forward, they were disappointed on the latter score.

That raises Walter's question from earlier today on whether the McDonald decision even answers the question of whether the Second Amendment is fully applicable to the states. Any time there are less than five justices joining every aspect of a decision, it raises the questions as to the scope of the court's holding, what lawyers know and fear as the Marks analysis. Here, however, it seems to me that it would be very difficult to convince a lower court judge that the question of whether the Second Amendment applies to the states was left unanswered in McDonald. Importantly, Justice Thomas begins and ends his separate opinion expressing agreement with "the Court" that "the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment 'fully applicable to the States.' " Equally important, unlike some circumstances in which a justice writes a separate opinion concurring in the judgment without joining any of the plurality, here there is an opinion for the court, fully joined by Justice Thomas, on many important issues. By my count, two-thirds of Justice Alito's opinion is an opinion for the court, rather than a plurality opinion. Moreover, the conclusion that the Second Amendment is a fundamental right for Fourteenth Amendment purposes appears in the opinion of the court. To be sure, for Justice Thomas, this conclusion does not dictate the answer to the incorporation question under the Fourteenth Amendment's due process clause. But for any lower court judge, this is the relevant question, and it has been answered in an opinion for the court.

Walter, you may have a different take on it, but while McDonald will not settle the academic debate, I read it as answering the question of the Second Amendment's application to states and localities. That alone makes it an important decision, but it was far from the day's only far-reaching precedent. I plan to spend a bit more time on Free Enterprise and Bilski and post on them tomorrow. Dahlia, what is the latest from the Kagan hearings?


--------------------------------------------------------------------------------

From: Dahlia Lithwick
To: Paul Clement and Walter Dellinger
Subject: Empathy Has No Party
Posted Tuesday, June 29, 2010, at 4:46 PM ET
--------------------------------------------------------------------------------

Dear Walter and Paul,

It was somewhat cheering, sitting here in the Senate again today, to learn that Elena Kagan hasn't yet read all the opinions in yesterday's cases. I still have much to say about McDonald and Bilsk but have time only for a quick post right now on Kagan and the Christian Legal Society. Based on yesterday's comments at the Kagan hearing yesterday, you really might believe that empathy is second only to drunkenness and insanity when it comes to disqualifying factors for a Supreme Court justice. You might also come to believe that empathy is a sin committed solely by liberals and solely in the service of "the little guy," whoever that may be.

So there was Sen. Jeff Sessions warning in his opening statement that "President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their "broader vision of what America should be." Sen. Chuck Grassley accused Kagan of measuring up to the president's "judicial "empathy" standard—a judge's ability to "empathize" with certain groups over others." He went on to say the "'empathy' standard has been soundly rejected because it endorses the application of personal politics, feelings, and preferences when judges decide cases." Then Grassley warned Kagan that "judges and justices are supposed to check their biases, personal preferences, and politics at the door of the courthouse, so they can administer justice in an evenhanded manner." Then came Sen. John Kyl, explaining to the nominee that last year at this time, Justice Sonia Sotomayor explicitly rejected the "empathy" standard espoused by President Obama—a standard where "legal process alone" is deemed insufficient to decide the so-called "hard cases," a standard where the "critical ingredient is supplied by what is in the judge's heart." Kyl went on to excoriate the president for implying that "at least in some kind of cases, judges should abandon impartiality and instead engage in results-oriented judging."

All right then, fine, empathy is the worst. But reading Justice Samuel Alito's very heartfelt dissent in yesterday's Christian Legal Society case suggests that improper empathy is cropping up all over. At issue was the decision by University of California-Hastings' law school to deny formal "registered student organization" status to a group of Christian students who would not allow gay law students to join. As Walter noted in his very first post, the case pitted the group's First Amendment speech and association rights against the school's anti-discrimination policy (or policies). Writing for the majority, Justice Ruth Bader Ginsburg declared that Hastings' denial of RSO status to the Christian Legal Society did not violate the group's constitutional rights and that the group was not being singled out for persecution but rather seeking an impermissible exemption from the school's open-to-all-comers policy.

You can agree or disagree with Justice Ginsburg on the law, and the court decided the case by a 5-4 margin. But I just want to ask you both what you make of Justice Alito's dissent in this case. He opens by stating that while the First Amendment is intended to protect "the speech that we hate," in this instance the court "rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning." Alito goes on to detail all the ways in which the student group was stonewalled, denied privileges, and singled out for mistreatment at the hands of the administration. Alito is horrified at the majority's suggestion that the denial of RSO status "did not hurt CLS at all." He says "this court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad." He explains that a true "accept-all-comers policy permits small unpopular groups to be taken over by students who wish to change the views that the group expresses." Alito closes by writing that, "Even those who find CLS's views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration."

Again, we can agree or disagree on the merits of the First Amendment claim, but my thought is simply that if Alito isn't also at pains to empathize with the "little guy" here, I don't know who is. Justice Alito is so worried about the discrimination faced by one disfavored student group, he almost misses the purpose of the anti-discrimination rule, which is to protect other disfavored groups. As Justice John Paul Stevens observes in a footnote in his concurrence, "Although the dissent is willing to see pernicious antireligious motives and implications where there are none, it does not seem troubled by the fact that religious sects, unfortunately are not the only social groups who have been persecuted throughout history simply for being who they are." I wanted to remind Jeff Sessions of this same point today as he hammered away at Gen. Kagan for being disloyal to the men and women who serve this country. Why are some kinds of discrimination worthy of great empathy, and others are somehow illegitimate?

I want to be clear that I have no problem at all with Alito's expression of upset at how "this group has been treated," and I believe there is a place for that kind of analysis on the bench. Alito felt the same solicitude for the anti-gay-rights petition signers in Doe v Reed, the Washington ballot-initiative case, who could be subject to harassment and retaliation. But if this isn't a plea for his colleagues to empathize with one particular disadvantaged and worthy group, I don't know what is. And that makes all the carping about the evils of judicial empathy here in the Senate all the more difficult to stomach.


Best,
Dahlia


--------------------------------------------------------------------------------

From: Paul Clement
To: Walter Dellinger and Dahlia Lithwick
Subject: Free Enterprise: Doctrinal Shift or Snoozefest?
Posted Tuesday, June 29, 2010, at 7:09 PM ET
--------------------------------------------------------------------------------

I am feeling deeply ambivalent about the Court's 5-to-4 decision in Free Enterprise Fund v. Public Company Accounting Oversight Board decision. I cannot quite decide whether it is an important separation-of-powers decision that portends a major doctrinal shift in the court's approach to separation-of-powers issues or a nothing-burger that does not provide any meaningful relief even to the parties that challenged the law. Others seem to share much of my ambivalence. The truth is that both propositions may be true.

Based on today's press coverage of the decision, the latter view seems prevalent. The Washington Post, for example, gave the Free Enterprise decision the fewest column inches of the four decisions handed down yesterday and ran the story under the headline: "Sarbanes-Oxley Act upheld by justices." At one level, that is an odd headline to describe an opinion that found a provision in the Sarbanes-Oxley Act unconstitutional. Yet the headline does reflect the reality that the decision had the potential to strike down the whole act, and the result of the court's decision is far more modest, at least as far as the Sarbanes-Oxley Act is concerned.

There were at least three issues the court had to decide about the board and the act that created it: whether the provisions for removing board members were constitutional, whether the appointment process was valid, and whether any unconstitutional provisions could be severed from the rest of the statute or whether the whole act had to go. You may not know much about the board created to provide greater oversight of the accounting industry, but you may want to investigate. As the court noted, with perhaps a twinge of jealousy given the current state of judicial salaries, board members pull down a tidy $547,000 a year, while the chairman makes $673,000—or just a shade over three times what the chief justice makes. And, importantly, there are vacancies.

In all events, the court found the so-called "double-for-cause" removal provision unconstitutional. The court reasoned that because the president may remove SEC commissioners only for cause (even though the relevant statute is silent about this), and the SEC in turn may only remove board members for cause, the board members are too insulated from presidential control, and the removal provision is unconstitutional. The court then went on to reject the challenge to the appointment process. Finally, the court found that the invalid removal provisions were severable from the remainder of the statute, so the whole act did not fall because of the improper removal provision.

So what is the consequence of an invalid removal provision? Good question. The court made it crystal-clear that it would have no impact going forward, and the court would read the removal provision out of the statute, so henceforth board members would be removable by the SEC for any reason. What about past decisions taken by the board at a time when board members operated with an undue and unconstitutional view of their own independence? On that question, the opinion is less explicit, because the plaintiffs did not challenge any past action of the board. So what did the plaintiffs get for going to the trouble of bringing a case all the way to the Supreme Court? A declaration that the act's removal provision is unconstitutional. It is unclear whether that declaration comes with free steak knives or has any other consequence. It must have some consequence; otherwise, it is not obvious why plaintiffs had standing.

All that would seem to suggest that the decision is much ado about nothing. So where does the ambivalence come in? Well, first off, there is Justice Stephen Breyer's 37-page dissent (joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor), accompanied by four appendices covering another 35 pages. Clearly, Justice Breyer thought that something more was going on than an inconsequential excising of a removal provision. Second, there is the language of the majority opinion, which embraces a formalistic vision of the separation of powers, where an arrangement that makes sense to both the Congress and the executive does not receive any special deference. Indeed, much of the language in the majority opinion would suggest that even a single for-cause removal provision is an improper intrusion on the president's authority, although the majority was quick to note that any question of the validity of such provisions, which are common throughout the government—and the continued vitality of the decision that upheld them—was not before the court.

The reason this seemingly innocuous decision may yet prove consequential is that if there are five solid votes on the court for a formalist approach to the separation of powers, then the Roberts court will be an aggressive defender of executive power, more aggressive than the executive branch in this particular case. But are there five solid votes for this view of the separation of powers, or just five votes for the narrow result in this case? It is too soon to tell, but there are some clues. It is interesting that Justice Anthony Kennedy did not feel the need to write separately, as he did in the Hastings law school case. When the court announced the gun-free-schools case, Lopez, 15 years ago, it was treated as if it would usher in a new federalism counterrevolution. By the time of the medical-marijuana decision a decade later, most concluded that the counterrevolution had never materialized. But there were hints in the gun-free-school case itself, in the form of concurring opinions emphasizing the narrowness of the holding. When the Apprendi decision came out, it was greeted primarily with a collective yawn, yet there were no concurring opinions, and Apprendi's logic would eventually completely rework criminal sentencing. Is Free Enterprise a Lopez or an Apprendi? Stay tuned.

Become a fan of Slate on Facebook. Follow us on Twitter.


--------------------------------------------------------------------------------

From: Paul Clement
To: Walter Dellinger and Dahlia Lithwick
Subject: Pity the Federal Circuit for Bilski
Posted Thursday, July 1, 2010, at 1:25 PM ET
--------------------------------------------------------------------------------

I know the two of you have been focused on the hearings. I assume that General Kagan has not embraced a FIFA referee as her model of the proper judicial role or expressed sympathy for an unenumerated right to flop. I hope, if asked, she has come out squarely in favor of instant replay for goal-line decisions. Some matters really should be beyond debate.

In any event, before we close the book today on this year's discussion, I wanted to share a thought about the one decision in the court's final four we have not discussed, Bilski v. Kappos, which concerns patents of business methods. As far as patent law is concerned, the takeaway is that this decision is good news for two groups: holders of business-method patents (because the court came within a vote of rejecting the whole notion of business-method patents, but did not) and patent lawyers (because the court rejected a definitive bright-line test for patent eligibility, which means lots more litigation).

Beyond that, the decision makes one thing crystal clear: It is not easy being the Federal Circuit Court of Appeals. Congress created the Federal Circuit a little more than a quarter-century ago to provide a special forum for, among other things, patent appeals. This was a departure from the usual model. Generally, the system allows disputes in federal trial courts to be appealed to the "regional courts of appeals," which are the 11 numbered circuits and the D.C. Circuit. These courts are generalists, like the Supreme Court that reviews their work. There is no specialized court for securities law or antitrust law. Not so with the Federal Circuit; it is a specialized patent court that hears patent appeals from all across the country. The idea is that a specialized court would be able to develop uniform rules for patent cases without the need for Supreme Court review.

This system worked pretty well for the first 20-plus years when the Supreme Court largely left patent law to the Federal Circuit. But recently, the Supreme Court has shown a renewed interest in patent law and Federal Circuit decisions have not fared very well. Before Bilski this week, the Roberts Court reversed the Federal Circuit in every patent case it reviewed, and most of the votes were unanimous. Now in Bilski the Federal Circuit has finally been affirmed, but it did not feel much like an affirmation. The court specifically rejected the Federal Circuit's new test for business method patents, which the circuit had tried to divine from Supreme Court precedents.

Let me be clear: I do not think anyone is really to blame for the Federal Circuit's difficulty. The Federal Circuit was told to supervise district courts all over the country, most of which rarely get a patent case. In providing that supervision, the Federal Circuit naturally gravitates to bright-line rules. Congress left the Supreme Court in a position to review Federal Circuit decisions, and when it does, it applies the same rules of statutory construction it applies in other contexts. If the Federal Circuit's bright-line rule does not appear in the statute, then the Supreme Court reverts to the more general language of the statute. That is what happened in KSR v. Teleflex, a big 2007 patent ruling, and that is what happened in Bilski. And even if no one is to blame, it sure does not make being the Federal Circuit any easier.

Dahlia and Walter, thanks again for letting me join you at the breakfast table this year. I will be sad to see the trialogue come to an end, but the timing is fortuitous—I can now concentrate on the World Cup quarterfinals without having to read any more opinions.


--------------------------------------------------------------------------------

From: Dahlia Lithwick
To: Paul Clement and Walter Dellinger
Subject: Kagan's Hat Trick
Posted Thursday, July 1, 2010, at 7:48 PM ET
--------------------------------------------------------------------------------

Dear Walter and Paul:

This week will certainly go down in Breakfast Table history as the busiest we've ever had, and I want to thank you both—on behalf of our readers—for the heroic efforts to watch soccer, read and digest opinions, and teach us all something about the Constitution, while a confirmation hearing is exploding all around us. Before I sign off, I just want to echo something Paul wrote in his latest post on Bilski: that this judging thing is hard, and we don't blame judges for coming to different answers.

I don't know if I've ever covered a more civil confirmation hearing. Yes, it's been testy at times, but I have seen so few personal, insulting character attacks this week—the sort of attacks we saw during the Alito and Sotomayor hearings. I suspect this is partly Kagan-specific—she has made it hard to dislike her and easy to admire her. I also suspect it's because we have talked very little about the issues that sometimes make these hearings so toxic; some of the most overheated exchanges this week actually concerned the commerce clause and book burning rather than abortion and affirmative action. It's also possible that substituting a liberal for a liberal at the high court just doesn't warrant bringing on the crazy. I also would like to believe that the courts have a quality that inclines us to try to speak a bit softly, and a bit respectfully, and that this is a good thing.

Thanks for the time you both put in, and for sharing your insights and wisdom. Thanks also for teaching me everything I will ever know about the game of soccer. Have a happy Fourth, and a restful summer.

Yours,
Dahlia

Paul Clement is partner at King & Spalding in Washington, D.C., and head of the firm's national appellate practice. He served as the nation's 43rd solicitor general and has argued more than 50 cases before the Supreme Court.
Walter Dellinger is a partner at O'Melveny & Myers in Washington, D.C., and head of the firm's national appellate practice. He served as head of the Office of Legal Counsel and as acting solicitor general.
Dahlia Lithwick is a Slate senior editor. Follow her on Twitter.

Article URL: http://www.slate.com/id/2257937/


--------------------------------------------------------------------------------

Also In Slate
Spitzer: How Washington Blew Its Chance To Change Wall Street
Could a Brain Parasite Found in Cats Help Soccer Teams Win at the World Cup?
Pretty Little Liars: These Girls Have Skeletons in Their Closets. Also, Lots of Cute Shoes.
It's Good for Patients When Pharmaceutical Reps Buy Doctors Lunch
James Sturm Defends Himself Against Readers Who Call Him a Bunny Killer
Help! I've Donated a Lot of Sperm. Do I Tell My New Girlfriend?

--------------------------------------------------------------------------------

Copyright 2010 Washingtonpost.Newsweek Interactive Co. LLC