A Salute to Barbara Grutter and her Lawyers

PLAINSMAN: As D. noted below, I am crushed with work right now and may be unable to post for three or four days. Which is, I realize, the worst possible timing, since the Supreme Court is hearing argument tomorrow in the Mother of All Cases, Grutter v. Bollinger. Let me at least say something.

I recognize the substantive arguments and the sincere commitment on each side of this issue. I have no doubt the university officials believe their current admissions practices are both legally defensible and morally sound. But I cannot agree. Therefore, my thoughts and hopes tomorrow will be with the plaintiff, Barbara Grutter, and her dedicated lawyers at the Center for Individual Rights, who have fought a long, hard campaign to reach this point.

As a matter of law, in light of what we now know about the University's policies, Ms. Grutter's claim that Michigan Law School illegally discriminated against her because of her race is supported by the plain text of the Civil Rights Act and the Supreme Court's 14th Amendment jurisprudence since Croson and Adarand (and indeed by the Powell opinion in Bakke itself). Remember, tomorrow's case is not about remedying a proven history of racial discrimination (which can indeed justify race-conscious measures). U. of Michigan has no history of race discrimination to overcome. Rather, tomorrow's case is about simple racial engineering. And as we have learned, the preferences being employed at Michigan Law to accomplish the engineering are immense.

As a matter of equity, I have not seen a defense of the "diversity of perspective" interest drawn from Justice Powell's opinion in Bakke , that convinces me that such policies -- as actually implemented by the universities (for where are the Baptists at Harvard? where are the Republicans in Cornell's political science department?) -- are worth the severe costs they exact in goodwill and fair treatment.

It is proper for our universities and colleges to reach out to the disadvantaged; such an approach resonates fundamentally with the American dream. But that is not really what our elite universities do today. A switch to class-based affirmative action would place them on far stronger moral ground. Especially since such policies would be manifestly legal: they would not -- like Michigan's policy -- be in profound tension with the principle of our law that state-imposed racial classifications are dangerous and disfavored.

The lower court dissent in Grutter well expressed, in part, what makes the U of M's policy offensive to millions of Americans, including me. I have quoted these words before, but let me refer to them again:

"[B]ecause academic credentials are significantly correlated with parental income, social status, and education, the malign effects of discriminatory policies like the Law School's will rarely fall upon the children of the educators who craft them or the judges who rule upon them. The statistical region where those policies really bite, and where people like Barbara Grutter are excluded from equal consideration based on their race, are areas likely to be more heavily populated by persons whose income, ethnicity, social standing, and religious preferences are not those of the academic, legislative, and judicial decision-makers who support those policies. Thus Michigan's policy can not be seen simply as a good-hearted effort by one group to forego opportunities for itself for the greater good."

And the dissent expressed why, I think, Ms. Grutter has the law on her side:

"Michigan's plan does not seek diversity for education's sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration."

-- Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) (en banc) (dissenting opinion).

I hope the Supreme Court will see it the same way. Good luck to her. See you all in a few days.


* * *

[again, sorry, Blogger was acting up]

[sorry, Blogger was acting up.]

PLAINSMAN: I think D. is on to something. The SARS story is obviously troubling: it would be far more prominent news if this were not wartime. (I can't find a single reference to it on the front page of Fox News, for example.) I spoke last night with another friend who also expressed the sense that this was being underreported. No doubt there's a shortage of hard facts on SARS at this point -- but it's not as though such a shortage is impeding the 24-7 war coverage.

D:

P, of this blog, is off somewhere doing lawyer work, so I'll continue the fearmongering theme of my earlier post. The WHO reports that 213 newly affected SARS victims are from one apartment complex. Of those 213, 107 were from one wing of the complex, and had apartments stacked on top of one another. The WHO concludes "that bodily secretions containing the causative virus might somehow enter common systems that link rooms or flats together". Possibilities: elevator buttons; A/C ducts; water or sewage pipes; railings? The scary part of this is, of course, that if the virus can live outside of the body for more than a few minutes, it is going to be enormously harder to control and protect against.

There are 15,000 residents of the relevant apartment complex, and yet CNN is currently trumpeting some more propoganda about the war effort. As I said before ... whew!

D:

Off-topic
[That is, to the extent our topic is the propriety of respectful dissents, I intend to comment more later in the day].

I want to throw out there, for the sake of discussion if you are interested, the possibility that in 12 months, people looking back will believe that the SARS illness was of far more importance than the Iraq war, and both the war and peace bloggers wasted their breath while an unremediable, highly contagious, and deadly epidemic began its trek across the globe. I started thinking this when I saw that the scientist who discovered this new illness, Carlos Urbani, died of it this weekend. This is what his obituary says, in part: "The disease is the first dangerous new infection that spreads directly from one person to another to emerge in decades." Right now, the CDC doesn't know what causes the epidemic (although it may be related to the common cold), they don't know how it is spread (a key question is whether it can live in the air for extended periods of time), and have no treatments that have proven effective. People who got sick three weeks ago are still sick, although most are recovering (the mortality rate, when provided the best hospital palliative care and respirators, is around five percent).

Instapundit, after weeks of relative silence on this topic,posits that either: (1) things aren't so bad; or (2) things are really bad, but we don't know it yet. Um, yeah, great point Professor. I think there is a third option: this disease doesn't have a high mortality rate, but will make lots of people very sick for a very long period of time, burdening health care systems and economies the world over. And that, I'm scared to say, is a better scenario than what I really worry about.

You might legitimately ask why this isn't leading the evening news. But pray that it doesn't. Our press is so bemuzzled and blinkered that if this actually leads the evening news, it would mean SARS may be so out of control that we're in deep, deep trouble. I hope that day never comes, and that our press remains happily embedded with our troops in Iraq, reporting about "surgical strikes" and "shock and awe" 24/7.

PLAINSMAN: I had almost forgotten that even Justice Kennedy was indignant enough at the majority opinion in Hill v. Colorado to conclude his separate dissenting opinion with an "I dissent." (It is one of my favorite Kennedy opinions.)

PLAINSMAN: The D-Bomb, cont.

"I dissent" was rather uncommon when I clerked, and properly so. My judge rarely used it. I might have seen a few such uses by other judges in the slip opinions during the year.

My earlier expression -- "extravagantly wrong" -- didn't quite get the right nuance. Really, "I dissent" is saying both "you are extravagantly wrong" and "you are not doing your job properly." That's why you shouldn't use it unless you're sure.

Justice Scalia, of course, is the current Supreme Court's leading practitioner of "I dissent." I won't claim that he always deploys it with proper restraint. However, by way of illustration, here are two occasions where I think his use was reasonable. (1) Hill v. Colorado (2000), a nasty First Amendment opinion by Justice Stevens upholding what looked to a lot of us like an impermissible content-based, overbroad restriction on the speech activity of pro-life protestors. Scalia's "I dissent" justified because the majority opinion had an odor of results-orientation. (2) Dickerson v. United States (2000), which upheld Miranda v. Arizona against a Congressional statute that purported to overrule it. That's fine. But the problem was that the Court simultaneously upheld all of its 1970s and 1980s cases holding that a Miranda violation is not a constitutional violation -- which then inevitably raises the question why the heck Congress couldn't overrule it by statute. Chief Justice Rehnquist's brief, opaque majority opinion does not even attempt to resolve these problems, and Scalia and Thomas were justified in letting off a brusque "I dissent" in response to this failure of explanation.

Note that my view of "I dissent" vs. "I respectfully dissent" is partially prescriptive as well as descriptive. That is, I suspect not every lower court judge thinks too hard about this issue. They just lead an opinion off with, or close with, whatever comes to mind to express the fact that they are dissenting. (Cf. "I would reverse."; "Accordingly, I must dissent from the majority opinion."; etc.) But the convention we're discussing seems well established in the Supreme Court, and lots of circuit judges also seem to follow it.

D: Yeah, you are probably right. And, even if not, calling Breyer a Affleck like suavely technocratic Platonic Guardian gets you off scot free.

On dissenting, I disagree. Not that I'm in the position, nor likely to be, but it seems to me that it would be better always to be respectful, even when you believe that you think the majority is "extravagantly wrong." Why not simply say, at the end of a dissent, "I think the majority is extravagantly wrong. I respectfully dissent." But you were an appellate clerk, not I. Did these kind of nuances get noticed?

PLAINSMAN: Nah. As I observe it, the "no epithets of approbation respecting judges" norm applies only to gratuitous epithets. E.g., "as suavely technocratic Platonic Guardian Stephen Breyer, the Ben Affleck of the U.S. Supreme Court, pointed out in his dissent in today's ERISA case:," etc. My assessments of Judge Pickering and Justice Owen, and of the Democrats' possible views of each of them, were material to the points I was making about their confirmation processes. I called Reinhardt "very clever" the other day (I originally had "very smart") when it was relevant to puzzling out his opinion in McCoy.

I too would like to track down copies of the cert briefs in McFarland. Me, I'd particularly like to read how the PLF chose to pitch the case to the Supremes.

Dissenting protocol: Yes, it is sometimes proper to write a dissent that ends (or begins) with "I dissent" rather than the normal "I respectfully dissent." The device is not intrinsically any less legitimate than using a per curiam reversal to signal that the rendering court thinks the court below totally dropped the ball. However, "I dissent" must be used with caution. It says "I think the majority opinion is extravagantly wrong," and people are less likely to take seriously a judge who claims his colleagues are extravagantly wrong all the time.

D:
Round-up

I have nothing to say about Judge Owen, on the theory that this blog's first commandment is: "We will not blog about Judicial Confirmations". And, you know, calling one judge "very impressive" and an "able conservative" and another merely a "reputable district court judge in Mississippi" appears to violate Sub Judice's quieter second commandment.

On McFarland, how interesting. I will have to read the U.S.'s brief in opposition to certiorari. That will be some tricky writing, I'll bet. Hmm, do you know off-hand the timing of en banc petitions in the 9th? I know the pledge case had a less than six month turnaround, but that was a remarkable incident. Do you think that it is possible that the cert. petition in McCoy would go up next term, or are we talking about 2004/05?

There are things to be said about judicial tone. We've talked about this in the past. Considering a recent Bashman post, let's make it concrete: "Is it proper to write a dissent that does not end "I respectfully dissent""

The McFarland Case: An Update

PLAINSMAN: Readers will remember our previous discussion of the Fifth Circuit's remarkable 8-to-8 en banc decision in U.S. v. McFarland, a Commerce Clause challenge to the conviction, under the federal Hobbs Act, of a defendant who committed minor robberies of local convenience stores. The Fifth Circuit's even split resulted in an affirmance of McFarland's conviction, over a thicket of dissents from Judges Garwood, Higginbotham, and Jones -- dissents that one half of this blog, at any rate, would term "convincing." In January I noted McFarland's filing of a cert petition to the U.S. Supreme Court, and opined that the procedural history of the case made his petition a strong one, with a decent chance of being granted.

Well, we will soon find out: the briefing is now complete. After requesting an extension of time, the United States filed its brief in opposition to certiorari on March 10; the Pacific Legal Foundation also filed an amicus brief in support of McFarland. The Justices will consider the petition in McFarland v. U.S. at their April 4 conference. Stay tuned.

Deep and difficult Commerce Clause disputes seem to be busting out all over these days. Even if the Supreme Court decides not to take McFarland's case, it may eventually get a chance to review U.S. v. McCoy -- the recent Ninth Circuit decision invalidating, under the Commerce Clause, a federal child-pornography conviction. However, McCoy still has a way to go before it could reach the Supremes. We'll have to see whether Judge Reinhardt's bold (and, as I have previously opined, correct) holding escapes en banc reversal.

Priscilla Owen and the Filibuster

PLAINSMAN: I'm not thrilled to say this, but I think the Senate Democrats have some reasonable grounds, if they choose, to filibuster the Fifth Circuit nomination of Texas Supreme Court Justice Priscilla Owen, whom the Judiciary Committee narrowly approved today.

I think Justice Owen is very impressive, and that she should have been confirmed the first time 'round, for the reasons stated in this White House press release today. (Link via Bashman.) However, she wasn't. As an institutional matter, President Bush should not have renominated her immediately after she went down in committee.

It would be fine to renominate her a few years down the road -- e.g., in a subsequent Republican administration, as happened to John Roberts, now on the verge of confirmation to the D.C. Circuit. But the speedy re-nomination of Owen has an unseemly "bare knuckle" quality that does no favors for the judicial confirmation process, which is in deep trouble already. Indeed, the Dems' current filibuster of 24K nominee Miguel Estrada seems to me another example of such ugliness.

At the same time, I hope we don't see a filibuster of Owen combined with the confirmation of the other previously defeated re-nominee, Charles Pickering. How depressing that would be. With all respect, while Pickering is a reputable district judge in Mississippi, he just seems less suited than Owen to be a circuit judge. Such an outcome would suggest another bare-knuckled Realpolitik story: Dems targeting the more qualified of two nominees because she's an able conservative woman.

Yes, yes, I know there's always been a sizable dose of sheer politics in the process. But it's hard to deny that things are getting worse in recent years, and we shouldn't speed its deterioration any more than we must.

PLAINSMAN: Now, I said that I had expressed a "susp[icion]" that O'Connor would switch votes in the IOLTA case -- not a "predict[ion]." It's in the final paragraph of the post I linked to.

I agree with you about the counterproductive effects of Justice Scalia's tone. It is a pity. There's so much intellectual substance and style in his opinions. He could increase his influence by simply improving his literary deportment; I often wish I could take a red pen to his drafts.

There are disadvantages as well as advantages to the old-style judicial practice of drafting one's own opinions, which is followed by only two Justices nowadays. Documents produced by committee (i.e., with lots of clerk help) tend to be less flavorful but more diplomatic. One should think not only of Scalia's verbal brawling, so often dwelt on by the media, but also, for example, of the frank hostility to traditional moral and religious communities exposed in Part VI of Justice Stevens's dissent in Boy Scouts v. Dale. (In the context, Stevens's closing quote from Brandeis is ironic.)

I must say I find Stevens's Douglas-like posturing as unjudicial as Scalia's choler. Probably we will hear more from Stevens in this register in June, when the Court decides Lawrence v. Texas. At least then it will be in service of a more sensible conclusion. Eisenstadt v. Baird plus the Law of Rules implies a reversal in Lawrence, or so it seems to me.

IOLTA and Fanaticism

Well, I suppose that you previously predicted that O'Connor would switch her vote, but I don't see that in the post you refer to. On the other hand, take a look at this oracular post of mine!

Both you and Bashman appear to be somewhat ambivalent about the outcome of this case, and you both also appear uncomfortable about the tone of the decision. As well you should. Justice Scalia's dissent was, as you note his "usual mixture of strong arguments and unnecessary ad hominem asides". For those that don't want to read the actual =decision, here are some highlights: "This definition of just compensation has no foundation in reason."; "The conclusion that it is devoid of value because of the circumstances giving rise to its creation is indefensible."; "That were surely an unprincipled distinction. " " To confuse confusion yet again." One wonders: does the Justice believe that this kind of writing makes him more persuasive? I find just the opposite to be true. While I find some of the arguments made by the dissent to be persuasive, the overall tone is shrill, and it made me want to ignore some of the problems of the majority's "net loss" compensaiton approach. Most of this shift occurs because shrill rhetoric makes it harder to imagine going down the slippery slope -- it makes the slippery slope argument appear purely political in nature, rather than logical.

And you get the sense that Justice Scalia, like the WLF, believes that its "an abomination that Iolta can take money that is rightly the property of Americans like you and me and use that money to support programs we oppose, that stand in direct opposition to everything we believe in." IOLTAs are supported by ``groups dedicated to the homeless, to minorities, to gay and lesbian causes'' and other ``radical causes.'" That belief is born up by his recent comments at oral argument in Lawrence v. Texas ("Smith replies that there would need to be some showing that gay kindergarten teachers produce harm to children. Scalia offers one: 'Only that children might be induced to follow the path to homosexuality.'"). It is unpleasant to imagine that a Supreme Court Justice is letting his personal feelings about a group of people influence his decision in an entirely unrelated (and highly technical and complicated) case dealing with property rights, but there it is, one can't help but feel that the Justice protests too much.

Take That: IOLTA Survives Constitutional Challenge

PLAINSMAN: The Supreme Court decided the big Fifth Amendment challenge to state IOLTA programs today, "sub nom." (under the name of) Brown v. Legal Foundation of Washington. The Court held, five to four, that such programs did not violate the Takings Clause. Thus, it affirmed the judgment, though not all of the reasoning, of the en banc Ninth Circuit below.

As I suspected would happen (see this post from our previous discussion of the case), Justice O'Connor joined the four liberal Justices to reject the WLF's Takings claim. O'Connor, you'll recall, had provided the key fifth vote for Chief Justice Rehnquist's opinion in Phillips v. Wash. Legal Foundation (1998), holding that the small amounts of client interest generated by IOLTA accounts are private property that belongs to the client and is subject to Takings analysis. But today, in Brown v. WLF, Justice O'Connor's vote went to Justice Stevens, who wrote the opinion of the Court.

The Court's opinion concludes that the state's appropriation of the interest income of the clients was probably a taking. Moreover, it was probably a per se taking that must be analyzed under Loretto v. Teleprompter (1982), not, as the Ninth Circuit majority had thought, a mere potential "regulatory taking" under Penn Central (1978). That seems clearly right to me: I have criticized the Ninth Circuit's contrary conclusion before.

Nevertheless, the Court concludes, requiring lawyers to deposit client funds in IOLTA accounts does not violate the Fifth Amendment, at least under the terms of the state of Washington's IOLTA program. For the Takings Clause only forbids takings "without just compensation," and the Washington IOLTA requirement only applies when the economic value to the client of the interest generated by client funds would otherwise be zero (net of the transaction costs of retrieving the interest). It is IOLTA itself that makes it economically worthwhile to extract interest, by creating a large common pool for many clients' funds. Stevens reasons that the baseline for figuring the amount of "just compensation" is what the clients would have been able to realize by investing their funds on their own, not through IOLTA. That amount here is zero, so the clients have no Takings Clause claim.

Justice Scalia dissents, joined by the Chief Justice and Justices Kennedy and Thomas. The dissent seems to contain Scalia's usual mixture of strong arguments and unnecessary ad hominem asides. His tacit message seems to be that O'Connor was swayed by sympathetic facts and has endorsed a result which does not make any doctrinal sense in light of Phillips. Scalia says the holding in Brown today entails that "the government may seize [any] property for which the administrative costs [to the owner] of retention exceed market value," which is contrary to Phillips and other precedent. Dissenting opinion, note 5. The Takings baseline, Scalia urges, is not what the client would have netted by investing in a non-IOLTA account, it is the value created by the IOLTA account itself, which Phillips deemed to be the property of the client.

I'm not sure what I make of the decision as a whole. So I refrain from offering any conclusions.

A Lyric Turn

PLAINSMAN:

wholly possible
mid-1980s panel
evokes December.

BRIGHT, WINTER, and STARR (8th, 2d, D.C. Cir.).

You're welcome for the haiku.

Yes, these posts are the blog equivalent of eating Smarties instead of your vegetables. I promise a real post soon.

Another Diversion: Tort Reform?

Eugene Volokh, campaigning against gun manufacturer lawsuits, suggests that replacing "gun" with "alcohol" in such cases would demonstrate that the anti-gun-manufacturer argument makes no sense.

Volokh appears to believe that suits against alcohol manufacturers are so silly that they don't even bear thinking about. Why is that? Look, I'm not necessarily an enterprise liability guy, but I see the logic of that (serious) point of view. Volokh writes that foreknowledge of illegal use, marketing that encourages illegal use, and subsequent harm can not justify tort recovery "as to alcohol, guns, cars (after all, 10-15,000 innocent bystanders die yearly in car accidents, and car manufacturers recklessly keep selling fast cars, and utterly fail to police whether their distributors sell cars to people who seem likely to be reckless), or other products." This proves too much and too little. The car manufacter example is a non-starter. Car manufacters are liable in certain circumstances (defective design being the prime example), and, to the extent that they are not liable, a good social reason comes to mind - namely the requirement that drivers have insurance. Liability protection in tort is often a substitute for insurance. It would make little sense to widely expand liability to cover situations of abuse of reasonably safe cars where we are sure that innocent victims aren't left bearing huge costs alone. No such mandatory insurance regimes exist for victims of drunks or victims of gun violence. [Excepting victims of drunk drivers, who are already compensated by insurance companies in some, but not all cases]. [Note, many arguments for enterprise liability see it as a form of social insurance. See Steven P. Croley & Jon D. Hanson, Rescuing the Revolution: The Revived
Case for Enterprise Liability, 91 MICH. L. REV. 683, 693 (1993).]. To believe that manufacturers should not have to internalize all the costs of their production is to assert either: (1) that a regime of social insurance exists to compensate innocent victims; or (2) that innocent victims of production should bear the unexpected costs of living. Now, there are good reasons to believe that we don't live in a #1 type world (at least in the U.S.). And there are reasons to put burdens on innocent victims of gun violence to bear the costs, rather than gun manufacturers. Those reasons might include the possible bankruptcy of gun manufacturers if they were forced to pay costs;. Of course, if it were true that paying all costs of gun manufacturing would bankrupt gun manufacturers, one might reasonably begin to question whether gun production is a net benefit to society. And we know that this situation is counter-hypothetical-factual - gun manufacters would just raise gun prices to make budget. The cost of gun violence would shift from victims to gun owners. This, then, would put an increased price on the "right" to own a gun located, albiet indistinctly, in the First Amendment. If this is Professor Volokh's real complaint, he ought to make it explicit. But I do not think that the comparison to alcohol gets him much traction.

D:
Naming Games, While Rome Burns

As I, and the readers of this blog, await P's response to this post, I'm forced to engage in just the sort of spectacular, unsubstantive fiddling that has marked CNN's war footage. On sub judice, our technological ineptness makes such fiddling kind of geeky. Hence, the continuing appellate name game.

Tobias Stern, a law student blogger, offers: "WINTER (2d), SLEET (D. Del.), and FROST (S.D. Ohio) (and RAINEY (S.D. Tex.). (Add an old D. Maine judge, HALE * * *" (sorry Tobias, we don't allow smiley faces on this blog).

A Fourth Circuit clerk (incidentally, clerks who email us should let us know if they want their names posted. The default will be no), writes: "If the first Chief Justice came out of retirement sit on the Fourth Circuit by designation (as Justice Powell occasionally did), and sat on a panel with one representative from its liberal wing and one from the
conservative side, the conservatives would win (no big surprise), as the case would be heard "before JAY, MICHAEL, LUTTIG, circuit judges." Very nice.

Ok, these anectodal entries are great, but I think the game is too easy when you don't have any rules. Entries which comply with the following rules will be evaluated and posted on an ongoing basis: (1) the panel members must have been theoretically able to sit with each other (that is, they were alive and on the bench at the same time); (2) no panel can have more than one district Judge (or else, as as been pointed out, it won't be the appellate name game); and (3) Rule #2 goes for Supreme Court Justices as well.

PLAINSMAN: Updated the first Name Game post below in response to a correction.

More Appellate Name Game

PLAINSMAN: Here's a counterfactual, but temporally possible panel. It's the 1970s. The 5th Circuit (the old 5th Circuit, with six states) has a judicial emergency, and you get the following unimpeachable lineup:

"Before WISDOM, Circuit Judge, ALLGOOD, and JUSTICE, District Judges."

(5th; N.D.Ala.; E.D.Tex)

D:
Katie, bar the door some more!

I want the blog's readers to know that the minute I saw the McCoy decision on Bashman, I knew I was going to make P's day by forwarding him the link. And, indeed, as many of you noted, P blogged the heck out of that decision. He even got a mention by Orin Kerr over at the Conspiracy.

Something that hasn't been blogged, at least not in the stuff I've seen, is the Judge Trott's dissenting position that one can not resolve this type of commerce clause challege on an as applied basis. According to the Judge, when a general regulatory statute itself bears a substantial relation to interstate commerce, the fact that any particular application has only a de minimis impact avails defendant not. If the statute is valid, anybody it applies to can be sanctioned. With an odd flourish, Trott concludes, "It's the statute, amigo." [Note, he says, to paraphrase a current saying. What saying is he referring to?]

Trott's concern, which he articulates well, is that allowing one as-applied challenge would, essentially, gut the statute, because almost all instances of child pornography are going to be largely intrastate, non-commercial productions. It can't be, Trott says, that the Lopez Court meant to let off all of these pornographers. [As our readers have noted, the reasoning of McCoy extends easily to gun and drug possession generally].

Ok, fair enough. As this blog noted only a few weeks ago, the problem of as applied v. facial challenges in criminal commerce clause cases is especially difficult to get a grip on. Like intrastate possession of child pornography, the proposed ban on human cloning would be unconstitutional as applied far more often than it would be constitutional. I agree with Trott that system that the majority's position, where a jurisdictional hook gets you past a facial challenge but doesn't get you to a conviction, is just terrible. Those subject to commerce clause criminal jurisprudence ought to be able to bring a vagueness challenge on the ground that a statute void in most of its applications can not provide sufficiently clear notice to be enforceable criminally.[I've argued, and been hammered about,
this before].

This is just a fantastic case. If the Court takes it (after it goes en banc), we'll see if the commerce clause revival is more than skin deep.

[Note, read the facts. To charge these people criminallly is shocking. Shame on the federal prosecutors for bringing this case, especially, as so often happens, if they were small pawns the feds were trying to flip].

D:
Appellate Name Game: Some Reader Feedback
Tobias Stern, of "Sugar, Mr. Poon," writes: "What might a man armed with a Krups but no dairy creamer want to do? SELYA, BLACK, COFFEY (1st, 11th, 7th)." Keep the suggestions coming.

The Appellate Name Game

PLAINSMAN: Sorry to follow what I hope was a serious and substantive post with the following frivolity. I'll try to be brief.

My last post's brief reference to Fifth Circuit Judge E. Grady Jolly reminded me of a stupid yet amusing game that occurred to me while I was clerking: using the last names of actual judges to formulate imaginary three-judge appellate panels with funny names. You know, like this: "Before DEWEY, CHEATHAM, and HOWE, Judges." But with real names. Best if you can limit yourself to (a) living (or recent) (b) federal judges. The whole circuit-vs.-district judge distinction is less important because district judges sit by designation on the circuit courts all the time.

If I recall, Howard Bashman noted a while back that there are two Judge Halls on the Eleventh Circuit. So that if Ninth Circuit Judge Cynthia Holcomb Hall came and sat with that Southern court, you could conceivably have "Before HALL, HALL, and HALL, Circuit Judges." Not bad. (Makes oral argument easy. "To answer Judge Hall's question first, ..."). There are also two Judge Parkers on the Second Circuit.

But here's my current favorite. It is cheating a little, because one of my imaginary panel's members has been deceased for some time. But if the aforementioned Fifth Circuit were visited by the Ninth Circuit judge for whom Dahlia Lithwick clerked, as well as a certain luminary Second Circuit judge and federal jurisdiction scholar of a previous era, you might get the following, which would put any litigant or opinion reader in a better mood:

"Before FRIENDLY, HUG, and JOLLY, Circuit Judges."

Discuss amongst yourselves.

UPDATE: Howard kindly corrects me. The Eleventh Circuit doesn't have two Halls, it has a Hill and a Hull. So when Judge Hall comes visiting from California, the dream panel that looms is: "Before HULL, HILL, and HALL, Circuit Judges." Even better.

A Big Win for the Commerce Clause

PLAINSMAN: I'm sufficiently excited that I have to post. Today, from Pasadena, we have U.S. v. McCoy, a powerful Commerce Clause opinion by Judge Reinhardt (joined by Judge Tashima) holding the federal child pornography ban unconstitutional as applied to the intrastate, noncommercial creation and possession of images using cameras and film previously shipped in interstate commerce.

It is, as one would expect from its author, a bold opinion. But I think that both the majority opinion's reasoning on the merits, and the tensions it diagnoses in current doctrine, are correct.

Some key points:

(1) Reinhardt not only distinguishes Wickard v. Filburn from the case at bar, but implies in a couple of places that under a principled reading of Morrison, Wickard itself may be in trouble.

(2) The opinion reveals that Reinhardt actually has doubts about the constitutionality of the federal Controlled Substances Act as applied to the simple, noncommercial possession of personal quantities of drugs. Essentially, such a case would seem just like McCoy's case, with merely a different kind of personal contraband substituted. Now, Reinhardt does acknowledge that drugs, like the wheat in Wickard, are fungible in a way the supposed child porn in this case (a family photograph) arguably was not. And he acknowledges that post-Lopez Ninth Circuit precedent has squarely rejected various as-applied Commerce Clause challenges to the federal drug laws. But, he adds pregnantly, such decisions preceded Morrison. His implied suggestion is that Morrison did not just echo Lopez, but actively moved current CC doctrine a little closer to the text of the Clause.

(3) Reinhardt notes that there is a particular need to scrutinize federal criminal laws to ensure that they respect the boundary between the properly national and the properly local. As Instapundit would say: "Indeed." See my long post below for some good reasons why.

(4) The fourth notable aspect of McCoy is of special interest to me, because I was planning to make it the topic of my next substantive post: why not all "jurisdictional hooks" are equal. Based on prior discussion, D. and I and our correspondents all seem to agree that the presence of a jurisdictional element in a federal statute enacted under the commerce power is normally a factor in favor of its constitutionality, and may insulate a given statute from facial challenge. However, I was going to post that I question whether this is true with respect to one common type of jurisdictional element: the "it shall be forbidden to do X using a Y that previously moved in interstate commerce" hook. That is the type of hook at issue in McCoy: the indictment simply said that McCoy used a camera and film that had been shipped to California from another state at some point in time. For heaven's sake, there's probably nothing in the room where I'm typing now that hasn't previously "moved in interstate commerce" in this sense. Thus, if the "non-infinity principle" established in Lopez and Morrison means anything, it seems to follow that the federal goverment can't use such jursidictional hooks to, in effect, declare itself proprietorof every loose chattel in America, and regulate us accordingly under the guise of the Commerce Clause. Judge Reinhardt zeroes in on this logic. He forthrightly holds that "the hook at issue here provides no support for the ... assertion of federal jurisdiction." (emphasis added) Wow.

All in all, a fascinating and, I think, correct decision. Go read it, all.

Now for a bit of speculation. Reinhardt is liberal, is very clever [like Judge Edith Jones? - Ed.], and is, in his different way, as savvy a judicial statesman as Chief Justice Rehnquist. So if you were emerging from a good bath in Legal Realism, you might construct a story about this opinion that would go as follows. Maybe Reinhardt is trying to fire a shot across the bow of the Justices who joined Morrison, and the other judicial and academic supporters of restored judicial federalism, by saying: "Look, this striking result in a child porn case is what the recent decisions logically entail. Now, will you apply them consistently, or will you create an ad hoc 'child porn' exception to Commerce Clause doctrine because child porn is repugnant?" A valid question, especially in light of the lower federal courts' consistent track record of rejecting CC challenges to drug convictions. And indeed, the dissent in McCoy is written by Judge Trott, a fairly conservative member of the Ninth Circuit. (He is also a former state and federal prosecutor.)

But just as I have no fear of such a possible charge of results-orientation here, so too, many of Judge Reinhardt's brethren on the other circuit courts, including some of notable conservative stripe, have reached the same Commerce Clause holding in child pornography cases. Indeed, one of the two main persuasive authorities that supported Reinhardt's analysis was U.S. v. Corp (6th Cir. 2001), a case virtually identical to McCoy in which a panel of three Republican appointees (Krupansky, Wellford, and Boggs) held the federal child-porn statute unconstitutional as applied to Corp. The other was the similar dissenting opinion of Judge Jolly, another Republican appointee, in U.S. v. Kallestad (5th Cir. 2000).

Better for now to simply take the McCoy opinion (like Reinhardt's Second Amendment decision in Silveira, and the Pledge of Allegiance decision, in which Reinhardt concurred) at face value, as a strict attempt to apply the law. In this case, the attempt was a great success. It is appalling to imagine the creators of child pornography going unpunished, but that very repugnance ensures that the states will police such offenses in those places where the federal government's sizable, but limited and enumerated powers do not reach.

D:
P, since you were burned once by downplaying the impact of Title VI, are you now working it into every conversation you have? Like, someone says, "Hey P, that looks like a good sandwich!" and you reply, "Sure, but did you consider the impact of Title VI?"

That was a cheap shot, but well worth it.

And in terms of your Ox Being Gored, I think my point was that only certain really political decisions are uniquely unpersuasive. Abortion. School Vouchers. Affirmative Action. That is, decisions making choices that seem not to require specialized legal knowledge. Now, I understand that Seminole Tribe et al. is a political decision, but its grounding, and its effect, are sufficiently mysterious to allow the kind of cognitive dissonance that you refer to. And besides, even if it were true that you could agree with, say, the Zelman case while also finding it unprincipled, that would be because you are a famously conflicted communitarian thinker.

I've done the Supreme Court game. I was, get this, O'Connor, followed by Thomas, followed by Souter. They might as well simply have told me: "Dude, make up your mind already!"

A voice in the distance

PLAINSMAN: What a stud and trooper D. is for carrying the blog while I'm snowed under! I will be back no later than Friday morning with some responses to the Big Federalism Debate initiated by my earlier post.

In the meantime, one quick thought on the Scalia/Balkin business. I found Prof. Balkin's original sally about the 14th Amendment interesting but not decisive. Yet Stuart's riposte was not entirely satisfactory either. (As D. noted, Justice Scalia did describe his position as "originalism" in the very text Stuart quoted.)

Whatever the original meaning of the 14th Amendment is, I would note that, as an original matter, an interpretivist judge could easily strike down U. Michigan (or Yale Law School's) racial preference policies on statutory grounds, under Title VI of the Civil Rights Act of 1964.

Title VI says simply: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in ... or be subjected to discrimination under any program or activity receiving Federal financial assistance."

As an original matter. The wrinkle is that U. Michigan and YLS now have stare decisis on their side, and that counts for a great deal in statutory interpretation. The Supreme Court's statutory holding in Bakke tied Title VI's scope to that of the 14th Amendment. Hence we are back on the proper interpretation of the Amendment.

PS: My ox would be gored by the overruling of Seminole Tribe et al., D. -- I find the decisions somewhat attractive on policy grounds. But they represent an unacceptable stretch of the text (or its structure), and they need to go.

PPS: Find out which Supreme Court Justice you are! (Thanks to Southern Appeal for the link. I took this quiz a few months ago but then lost the URL.) Some will be unsurprised to learn that, like Southern Appeal, my most sympatico Justice this time turned out to be the Court's Catholic neoformalist, Nino. Yet when I took the test just a few months back I was Justice Kennedy. Has my diet changed?

D
Buck/Scalia v. Balkin/Lederman v. Sub Judice

Prof. Balkin has responded to Buck's post. Balkin, taking Buck/Scalia's textualism argument head on, argues "After all, if one is concerned with what the words of the Fourteenth Amendment were fairly understood to mean at the time they were adopted, the words "privileges and immunities" and "equal protection" *meant* civil equality, not political or social. They were meant, and were generally understood to mean, that civil, and not political or social equality was guaranteed by the Amendment. They should mean today what they meant then, at least to someone like Scalia. Under that reading, then what Michigan is doing is also not a matter of civil equality, and is therefore untouched by the Fourteenth Amendment's prohibitions."

Similarly, Marty Lederman argues in email to this blog that Scalia's principal argument for "color-blindness" is empirical, quoting from Aderand: "To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred."

Lederman criticizes my reliance on Alden as an example of the Justice's "pretextual textualism", because this isn't an opinion he wrote. But, so what? It was a 5-4 case, he provided a decisive vote, and he's signed onto the reasoning. Additionally, I find the case to the least moored to constitutional text of the recent soverign immunity decisions.

Finally, Lederman says that "I'm not sure that [Scalia] does 'contemporaneously defend[] the rights of judicial nominees to say nothing to Congress based, allegedly, on the neutrality principle'". In that regard, I was referring to the Justices' recent comments about the nomination process, which I had thought were directed at the Estrada fillibuster. Reading those comments again, I'm not sure that its totally fair to say that they were. On the other hand, he does say that mixing politics and judging creates logjams, which is bad (and then essentially blames the liberals for creating political judging). And yet, I note that it isn't liberal Justices like Souter who are currently barnstorming through the heartland.

But onto substance. I still think that Buck is half right (and not the half Balkin refers to, but a third half). The original debate arose when Balkin said that the Justice's vague paen to original meaning suggested that he ought to uphold affirmative action as Constitutionally permissable. Because neither Prof. Balkin nor Buck quotes the original comments in context, here they are:

"During the question-and-answer session, a University of Michigan student asked Scalia how he could interpret the Constitution as it was written when many people believe it came during a time of racist views.
'As long as we're operating under it, it is the only source of my authority," Scalia responded. "I will be bound what it says. I will not go beyond what it says.'"

The question is whether these comments suggest that Scalia would be hypocritcal if, considering "what the Constituion says", he finds affirmative action unconstitutional. The answer is absolutely maybe, but not for the reasons given by Prof. Balkin in his original post, which, as Buck noted, suggested that Scalia was talking about original intent.

I find this kind of debate unsatisfying, for the same reason that I thought Prof. Balkin's original post was misdirected. Sure, the Justice's position on affirmative action is inconsistent with his normal methods of judging, and sure, that shows that ultimately this is a political question. But I don't think you are going to convince someone like Buck that this is true, nor my co-blogger "P", nor the 50 percent of Americans who thought Bush v. Gore was rightly decided. Political decisions seem legitimate when your ox isn't gored. Full stop. I can not imagine any decision, written by any Justice, which will convince anyone already on the record about affirmative action, or abortion, that they are wrong and the opposing side is right. That's not how the Court works in such cases. Such decisions may affect the next generation of lawyers, students, citizens, who are still ripe to be molded. (For example, I am sure that recent law graduates are much more likely to be pro-Lopez than individuals who graduated, say, 10 years ago). But Prof. Balkin's "gotchya" Constitutional analysis isn't going to convince anyone of anything that they don't think already. It would be better, while there is time, to refocus attention on what is clearly the dispositive question: is this good, or bad, for society.

D:
Stuart Buck, defends Justice Scalia from a post of Prof. Balkin's. Balkin had argued that the Justice's recent comments on affirmative action, if taken literally, would compel him to find the practice constitutional. Scalia said that he could not dismiss the Constitution "and say it's the work of old, dead white males ...The only power I have as a federal judge, I derive through that of the Constitution." If the Justice takes originalism seriously, then he would also take seriously the intent of the framers of the 14th Amendment, who (Balkin argues) did not conceive of the Amendment as potentially barring affirmative action for minorities.

But, Buck protests, Scalia isn't an a believer in "original intent", he's a textualist (which, confusingly, the Justice refers to as "originalism"). "The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated." Buck concludes "there is no possibility of hoisting Scalia on his own petard on the affirmative action issue, as Balkin attempts to do."

I agree with Buck that these particular comments are insufficiently precise to serve as a hoistable petard. [Note, did you know that a petard is not a sword, as you might think, but a bomb?] Scalia's response to Prof. Balkin would be: (1) intent doesn't matter; (2) if it matters, it only matters to define ambiguity; or (3) intent provides no clear guidance.

But the Professor could have chosen two other ways to hoist the Justice, had he had wanted to. First, isn't it crazy for the Justice to talk about pending cases, even in this vague way, when he contemporaneously defends the rights of judicial nominees to say nothing to Congress based, allegedly, on the neutrality principle? Second, isn't the better way to demonstrate that the Justices' pretextual textualism simply to cite this this wildly unoriginalist decision?

"Pretextual textualism," I note, is a perfectly lovely title for a law review article.

D:
Unilateralism: Day Two
The New Yorker has a wonderful piece about "decision markets" A decision market, like any liquid gambling market, does explicitly what a stock market does implicitly: sets a probability of a future events occurence (or nonoccurence) based on thousands or millions of "investors'" bets about its likelihood. Examples of such markets include: the Hollywood Stock Exchange, the Iowa Electronic Markets, and (sort of) the Fantasy Supreme Court PredictionLeague. (The last is not really a decision market, but just a guessing game, on the other hand, it is a pretty neat site).

According to the New Yorker, decision markets have proven much, much better at predicting future events than individual experts. Suppose it could be determined that a well functioning decision market (i.e. an efficient, trade clearing market) is vastly superior to other forms of prediction about future events. Assume also that you are one of the legal scholars or economists who believe that regulatory agencies ought to be forced to perform cost benefit analyses before issuing regulations. Would consistency require you to insist that the government create decisional markets before deciding what sorts of programs to fund (a decision that ought, rationally, to be based on an understanding of future problems). If so, should courts give less deference to governmantal decisions unaccompianied by a decisional market prediction, just as scholars urge in the cost-benefit context?

D:
And finally, who else thinks that this quote from the NYT is unnecessarily snide?

"Secretary of State Colin L. Powell was reported to have said that 30 nations supported the move to disarm Iraq, including Estonia and Uzbekistan."

D:
On Elizabeth Smart. The only vaguely redeeming quality to the reporting so far is that the media seems mildly shamed by the whole incident. That is, there is still some sense in the reporting of being unsettled - of not knowing what frame to use to report this case - or even not knowing whether this is "news" at a time when the Country is going to war. And isn't there also a sense of surprise - like, "what is she doing alive? we finished reporting as a "vanished = dead" months ago!"

That uncertainty - reflected best in the media's obvious apprehension about revealing details about the sexual assaults, and the extreme defensiveness in reporting (totally unfounded, according to the Smarts) a story about a possible pregnancy, reminds us that even journalists can act like human beings once in a while. But then you have the SmokingGun, which, demonstrates again that everything can be commodified and sold for advertiser's benefit.

D:
Sub Judice Goes Unilateralist
As our regular readers may note, our posting has been spotty over the last two weeks. By this, you may be reassured that certain American law firms are not going belly up for lack of business this quarter. But since I now have a moment to blog, I'm going to take it, even though I don't think that "P" will be providing a discussion counterweight for a few days.

This, then, may raise charges among some of you that I am taking a unilateralist position with respect to what had been an admirably multilateral, cooperative, blogging environment. But certain panegyrists of the current administration, as well as Eugene Volokh, suggest that one can not be unilateral, despite being opposed by the overwhelming majority of a population, if one is supported by a distinct (albiet economically and culturally marginal) remnant. To which others ought to respond, borrowing Instapundit's trademarked argumentative technique, "Heh." But regardless, like the Country, I'm seizing control of the discussion, and damn the consequences.

It is moments like this that our "law blog" focus seems confining. The great issues of the day, Elizabeth Smart and the Iraq War (in that order, astonishingly, according to the morning news I watched), appear beyond the scope of our "Under Advisement" label. Certainly, the Judges of the First Circuit agree. The question raised in that case - whether a Court may enjoy the impending war on seperation of powers grounds - answers itself. I wonder what the petitioners had in mind. Publicity? A goad to the administration? Sharpening public discussion? Any of these goals is legitimate, for an academic or for a politician -qua- politician, but fails to provide a necessary, or desirable, ground for judicial resolution. That is, even though I am sympathetic generally with the position that Congress should resist Presidential encroachment on its war-declaring power (or, to be accurate, Congress should resist the urge to give up that last smidgen of power it retains), I am profoundly uncomfortable with elected politicians turning the the courts to answer truly political questions when they are unable to get the votes to do so elsewhere.

Politicians shoudl not join these "seperation of powers suits" for several reasons. First, and foremost, going to court is an admission of weakness. Americans, generally, think of American jurisprudence as remedial, not preventative (that is why the archtype American proceeding is a trial, not a P.I. hearing). Going to Court basically says: "I'm broken. Fix me." It also says "I don't have the votes in Congress to stop this". It degrades Congress as an institution in the eyes of the population to continually run to the judiciary for protection. Politicians as litigants are losers.

Second, and only slightly less important, there is always a theoretical possibility that a court will intervene, in a horribly messy, public, and irrational way, seizing power from democratically elected officials and imposing partisan solutions without the possibility of political redress. Co-equal branches of government don't let co-equal branches of government drive drunk (on power).

Third, and related to point one, judicial intervention in political disputes encourages the unfortunate tendency of many citizens to believe that all important civic questions should be answered by courts. Congress shouldn't be modeling disfunctional civic behavior.

All of this, incidentally, does not mean that every time a politician goes to court against another politician, she is harming the Republic. It's just a general rule.

Off a red-eye, but ready to engage
I'm a bit jet lagged, sleep lagged, and generally spacy, following a trip to the opposite coast for depositions. But I want to write a little bit in response to your post, which I hope you will clarify before I offer a rested response on the merits.

So, it comes to this: you argue for a more formal commerce clause (i.e. one that invalidates more laws with national scope) to preserve local governments' ability to govern their citizens effectively. At the same time, you argue for a more formal commerce clause to make it harder for "New York Times" elites to rule "farmers, mechanics, and front-line soldiers". [You suggest that this kind of paternalistic governing exists without respect to borders, but also hint that you believe that the NYT elites live in "urban" areas, while the good folk live elsewhere.] So, I'm confused. Are you saying we need a renewed commerce clause because local power is important, full stop, or are you saying that we need a renewed commerce clause because liberals have disproportionate power in the national government, and less national power means less paternalism and (by default) more power to the working class?

If what you are saying is the federalism = rescued conservatism, please look at our national government, and look at what happened in the last presidential election. Can you really say, with a straight face, that conservative states and ideologies have disproportionately less power than more progressive states and ideologies?

As our most active reader points out, your arguments appear to track precisely those made for by people defending the power of local elites to suppress blacks in the "archetype of 1950s Mississippi." Both the reader and I understand that your arguments are not, unlike those discredited by the righteous revolution, pretextual: you do not seek to reduce national power so that local elites can oppress, but rather to increase local power to increase democratic values. But why would you put the burden on we, the "elites", to justify national power? It seems to me this is precisely wrong. In light of the long history in this country of local elites doing evil to local minority populations, and (with exceptions, such as Huey Long) doing just as much evil to local working class populations (see, e.g., California farmers v. Okies; Pinkerton Guards v. Miners), isn't the burden on neo-federalists to show why, in your words, the "last war" is actually over? The New Deal was extremely good for "farmers, mechanics, and front-line soldiers", and the Civil Rights movement was too (considering that these populations contain large minority contingents). That is, you are the one arguing for change from the status quo - a status quo that is, in effect, a New Deal government (one that legislates national solutions to national problems without much constitutional sanction). Therefore, you are the one who has to establish: (1) a problem in the current system; and (2) a reason why your change will not result in precisely the evil and/or ineffective policies that before marked local control of national issues like race relations, environmental regulation, and crime control. While you accuse defenders of the status quo of fighting the "last war," isn't it your burden to actually show that the war is actually over?

Additionally, please explain why it makes *any* sense to define national power based on the local desires of "contemporary Nebraska, Kansas, Idaho"? Those states are empty, and getting emptier. Defining the commerce clause to privilege the right of small rural populations puts a very small cart before a very large horse. The limits of national power should be defined as what is good for the majority of the country; we can't ignore the Southeast, the Northeast, or the West, simply becaues their populations look ever less like those of the framing generation. Do you think that your average black resident of Mississippi wants the Civil Rights Act overturned because, as you might argue, it could reimpower her local government to control her destiny? This, if I may say, is a perculiarly Midwestern viewpoint. Midwesterners, blessed by stable, pragmatic, local governments, homogeneous populations, and disproportionately agrarian societies, naturally fear encroachment by other areas of the Country and want to remain seperate. But this understandable desire doesn't shift the burden to "New York Times" elites to justify the status quo. If you want to radically reshape the way the government works, show us why it is broken, and how it is currently failing citizens the country over as compared to a time when there was no such governmental interference.

More later, after a nice nap.

Why the fuss about the Commerce Clause? Part I

PLAINSMAN: As you'll have gathered from some of D.'s posts below, we've been carrying on an intermittent e-mail correspondence with readers about the thoughts expressed here on the Commerce Clause and its future.

At one point I told a reader my view that, if the project the Supreme Court seems to have launched in Lopez and Morrison is going to endure, future decisions must provide a further crystallization of doctrine. Current Commerce Clause doctrine is essentially a vague multi-factor test, as to which we are not even certain what some of the key terms mean. This situation can't endure forever, for reasons I'll examine in the post that will follow.

But I also said that the courts shouldn't give up on the project of upholding constitutional federalism. It's become pretty clear now that the post-New Deal academic orthodoxy, as stated by prominent writers like Herbert Wechsler and Jesse Choper, was mistaken. Choper et al. argued that you could have meaningful federalism (or anyway, enough federalism) without having the courts step in to enforce the federalism guarantees in the Constitution. Political checks inherent in the legislative process itself would supposedly keep Congress from passing laws that overreached its enumerated powers. Experience suggests that this is now false, assuming it was ever true. The incentives are all wrong. Congressmen naturally try to grab attention, and hence re-election, by over-legislating, enacting countless crusading reforms that impinge on the locally accountable police power of the states. We may be seeing an example of such overreaching in Congress today. The Senate has just passed Sen. Rick Santorum's bill banning partial-birth abortion "in or affecting interstate commerce."

In the end, some version of the path taken by the Rehnquist Court is the only way to preserve a significant federalist structure in our republic. Thus, I put it to my correspondent as a stark choice: "We either have to abandon constitutional federalism outright, or find a way for the courts to hold Congress to it."

To this my correspondent forthrightly replied that in such a case he would vote for the former, the abolition of federalism.

Why this would be unwise
This would be exceedingly unwise. For one thing, it is not consistent with the Constitution. But it is also lousy policy. The benefits of our federalism are powerful, and are likely to become even more important as we consider the course of the 21st century. Sharply pluralistic republics, such as contemporary America, do not have much of a successful historical track record to fall back upon. The ones that have worked, like Switzerland, have preserved strong elements of localism in the structure of their government.

Contemporary American pluralism is a consequence of several factors, including the upheaval caused by the Immigration Act of 1965, but a lot of it has to do with the emergence of an alternative conception of the culture in the 1960s, a phenomenon recently treated by Gertrude Himmelfarb, and, in more sanguine fashion, by David Brooks.

In many respects post-1960s America is an unprecedented and brave experiment. Yet it is also a perilous experiment. And it is reckless to expect it to succeed unless we tend the structures of localism that, as great good luck, form a part of our heritage.

Too many intellectuals, when called upon to think about federalism and the "mediating institutions" in our system, such as state and local government, immediately flash back to the archetype of 1950s Mississippi. They are like generals who succumb to the perennial tendency to fight the last war. Instead, anyone who favors the destruction of federalism should mentally address himself to contemporary Nebraska, Kansas, Idaho. Things cannot be casually chalked up to the shadow of slavery here. The difference is just that, statistically speaking, people in these states tend to view social issues differently from the New York Times, Justice Stevens, Bryant Gumbel, and PFAW.

I occasionally read these law review articles on federalism by professors at urban universities talking about how states are now meaningless because we're a homogeneous national culture. Not so. Anyone who thinks there don't remain important regional differences in the United States should budget some long car travel for his next sabbatical, preferably with the radio on.

A textually grounded regime of judicial federalism will help to prevent the destruction of those differences. And why is that important? First of all, of course, for their own sake. The conservative impulse needs no more initial justification than that. As a wise man once argued at some length, it is the innovator and homogenizer, the opponent of local custom, who bears the burden of persuasion. But setting that aside, there are wonderful hard-headed policy arguments for preserving diversity, particularly -- and somewhat ironically -- in light of the greatly increased mobility of America's citizens. One of the great perks of being an American is that you can move. The states comprise a market of jurisdictions. Federalism is a mechanism of social stability because people with differing views can find a congenial home, regardless of where they were born.

There is no need to romanticize anyone's views here. All we need say is that, e.g., Nebraskans and New Yorkers seem to disagree about public life in some ways, and that these differences naturally find expression in differing laws. Move to New York if you dislike Nebraska, move to Nebraska if you dislike New York. Yet this will cease to be a valuable privilege if New York and Nebraska are not allowed to remain different.

The Commerce Clause is important because it is the chief hook on which federal police-power legislation has been hung. A modified textualist theory of the Clause, tempered by contemporary reliance interests, would interpret the power to "regulate commerce ... among the several States" so as to restrict its scope in most cases to commercial and economic activity. I think Chief Justice Rehnquist is groping his way toward such a theory. It would be well tailored to preserve a healthy jurisdictional market by cutting down on the most provocative instances of federal encroachment on local norms.

(National uniformity is sometimes appropriate, but when we have thought it necessary to have a single standard we have explicitly altered the textual grant of federal power to reflect this. The great example is the 14th Amendment.)

I submit that pure nationalists like my correspondent have a substantial burden of persuasion to overcome. What a huge, diverse country this is, a veritable subcontinent. It is simply bad statecraft to presume that important issues of social policy should routinely be resolved on a scale of 280 million people. Rather, the great majority of decisions about how to structure the lives of, e.g., the 1.7 million Nebraskans ought to be made in Nebraska. Nationalizing everything is a recipe for the sort of "culture war" that certain observers so eagerly diagnose.

Judicially enforced federalism is not a panacea but it will make a difference to this situation. When the Commerce Clause is the subject of discussion, complaints about "conservative judicial activism" contribute little to the debate. The Constitution says what it says. For now, as long as a five-Justice majority holds the line, there remains the attractive possibility that, in the words of the blurb for Michael Greve's book (from which I have read only some excerpts): "the Supreme Court, which has reestablished at least some federalism constraints, and a loose coalition of 'leave-us-alone' constituencies - including some religious groups, home school and school choice organizations, and term limit and tax limit advocates - can through a virtuous cycle of progressive accommodation and cooperation succeed in advancing federalism."

One of the best discussions in the legal literature of the policy issues here is Steven G. Calabresi, "'A Government of Limited and Enumerated Powers': In Defense of United States v. Lopez," 94 MICH. L. REV. 752 (1995), which I recommend to all. I have drawn on this article to some extent here.

A final thought. The more monolithically nationalist our government becomes, the truer it will be that the parts of the country (here I mean the "geography" of class as much as physical geography) that produce farmers, mechanics, and front-line soldiers will have their preferences, communities and social norms subsumed by the parts that turn out journalists, consultants, professors, most would-be Supreme Court nominees, and, more generally, privileged lawyers like me and my correspondent. I don't find that an appealing prospect. I have befriended, loved, and learned from; I work under, admire and respect members of the New York Times wing of our culture. Yet we will all get along better in the 21st century if the legal system grants us somewhat more room to differ. The Constitution presciently marks out that space for us.

PLAINSMAN: This post is just a test.

PLAINSMAN: Promises promises

Big ups to D. for stepping up to preserve our blog's dignity. "Associate tasks" have been ugly around here. Clearly we need to take an experimental serum or get struck by cosmic radiation so we can acquire mutant blog productivity powers like some lawyers. As yet we do not have them.

I'll venture my answers to all three of D.'s sub-questions concerning the success of a facial constitutional challenge to the cloning ban. Readers will have gathered them from my earlier post. I think the answer to each sub-question is the same: "No, But Many Applications Will and Should Be Held Unconstitutional."

Sadly, I cannot offer another reasoned post on the merits just yet. But soon, soon!

This future post I envision will also consider various problems with a rule-based, somewhat formal theory of the Commerce Clause. (Such theory is, all else being equal, my Grail. By building the right mast, and then lashing Judge Odysseus to it, we shall sail past the perils.)

But my post-to-be will consider alternatives. It will weigh the pros and cons of a more loose-textured, standard-based conception of the Commerce Clause. In most such versions, the Clause gets glossed as a general "no harmful interjurisdictional competition!" clause. The federal courts are then called upon to gauge whether leaving a matter to the states would create undesirable externalities.

However, this will not be my next post. My next post will be the previously-promised ode to federalism. Granted, if we can't derive a viable Commerce Clause jurisprudence from the document itself, then the desirability or not of having the courts enforce such a principle is moot. But I have hope that such a jurisprudence is derivable, so I want to say something about why this is important if true.

So let's not choose a new topic yet. Let's stick with the Commerce Clause for the rest of this week, and simply write off the past five days wistfully as the "lost period" of Sub Judice, from which we will avert our gaze. By Sunday, I bet we'll be ready for a fluffball topic. Summer associate memories? Why business casual is so, so wrong? Favorite Non-NYC rap group? Think it over when you can.

D:
[Updated I've fixed the post below, originally published last night, to correct one typo and one small nit]
Associate tasks have prevented me from blogging recently. I understand that "P" is under similar pressures. Additionally, I had family in town, which made it less attractive to stay at the Firm any longer than necessary.

But still, it is relatively unforgiveable to have no postings for almost a week! So let me try to re-cap some issues from last week, and start a new discussion.

First, on the commerce clause we have have been engaged in a great email discussion with reader, and blogger, Marty Lederman, about the CC. It is clear, in retrospect, that my argument that the proposed ban on human cloning would be void for vagueness proved too much. As Lederman wrote, "if [the cloning law is] unconstitutionally vague, there goes about half of the U.S. Code, beginnning
with antitrust laws, all gun laws, the Hobbs Act, etc., etc." As he suggests, any argument that sweeps too far is probably flawed normatively, and likely to be a complete failure at predicting the future. No Supreme Court Justice will find the antitrust laws unconstitutional, even *assuming* that precedent wouldn't exert its status quo effect.

What, then, to do with the feeling that it is impermissable for criminal punishment to rest on a court's ex post judgment of whether a certain activity occured in interstate commerce or not. That is, since "effect on interstate commerce" is an *element* of the offense of human cloning, shouldn't possible criminal actors have at least some vague idea if they are acting criminally? [I note, parenthetically, that it seems pretty clear what is a criminal antitrust violation]. We know that the Court will not uphold a prosecution (in an as applied challenge) if the challenged cloning is held both to be non-commercial and lacking a "substantial effect" on commerce. Isn't defining these statuses, as well as knowing whether one has been hooked by the jurisdictional element, especially hard to nail down in an era where the Court has struck down a number of recent CC laws without giving a particularly compelling logical rationale that would enable actors to predict the future?

Neverthless, I missed the mark with a void-for-vagueness argument. As a Professor of mine taught in law school, voidness challenges aren't directed at unclear legal consequences; they are directed at laws that provide too much police discretion. They provide a very limited tool to potential criminal defendants.

The real issue here is teased out by exploring the different facets of normative, predictive, and descriptive Court watching. . Analogizing the expected constitutionality of a statute to Oscar-prediction, let's seperate out the question of the constitutionality of a cloning ban under the Commerce Clause into three distinct questions. My answers follow:

1. "Will Be Unconstitutional" [D: No]

2. "Should Be Unconstitutional as a Matter of Good Commerce Clause Policy" [D: No]

3. "Would Be Unconstitutional if Court Followed its Logic" [D: Yes]

With respect to this last question, I don't think it is necessarily a mark against a Court if it were to refuse to follow a logical chain. You just need to imagine every principle coming with a little tag: "this principle should be applied unless the status quo effects outweigh the expected benefits". That is, if Lopez et al. would compel overturning the federal drug possession laws, and such a change would be otherwise bad for the Country, it is hard to fault the court for refusing to be doctrinaire. This doesn't, in my mind, necessarily mean the earlier decisions were "political" or "illogical": it means that they, like all decisions, are subject to the normal common law processes of adjustment, testing, and refinement. Refusing to do Y, when Y seems to follow logically from principle X, does not make X a wrong principle, just a limited one. Or more simply, it should be ok for a court to stop at any point on the slippery slope it wants to, and reconsider which direction it is heading.

Ok, enough vague political theory for one night. What shall we blog next? P, it is your turn to offer suggestions.

D: Justice Holmes died this day in 1935. Go read his obit.

On the CNN story, assuming its truth, it is tough to decide which is worse: (1) a few loose cannons murdering prisoners; or (2) American soldiers torturing prisoners to death. The distinction, I would say, is that in the latter case the country is served, at least a little, by the extraction of (hopefully) useful information, but the country is harmed because its soldiers are doing evil under color of law. [I note parenthetically that I'm not making a categorical judgment about the value of torture by American troops as against our enemies. This isn't the forum. But the difference betwen torture and torturing someone to death is not just one of degree: it is a category difference in my mind.] The latter case (pure homicide) has no redeeming qualities, but at least doesn't make any systematic statement requiring us to grapple with what we want done in our name.

Ultimately, I think I prefer the uneasiness that results from realizing that our troops are doing bad things to protect us than actually rooting for our troops to be simple killers.

Lets have some more C.C. discussion. We haven't even begun to exhaust that topic. So, I wonder, is the EPA's enabling statute constitutional? In what ways is it not?

PLAINSMAN: Or perhaps simply murdered them. One definitely wants to know more details, but that article is frightening.

D: If I have time to take my nose out of document review, I should have time to respond substantively to P's posts, one might argue. I disagree, which is why all I'm going to do here is link to this astonishing article. A recent coroner's inquest suggests that our armed forces tortured some prisoners to death.

I just don't know what to say or feel about this.

PLAINSMAN: It's true; D. has sounded swamped when I've talked to him in the past few days. (I agree with him, to a point, on the good side of doing document review, though it doesn't take many days of that to satisfy me for months.)

More Commerce Clause discussion soon. In particular, I want to say something about why we should all support the restoration of the Commerce Clause. One reason is simple textual fidelity to the Constitution; that is what judging is supposed to be about. But there are also some gut-level policy reasons that strike me as quite compelling, especially if we start thinking about the future, considering the challenges and opportunities that 21st-century America is likely to face.

To propel the CC discussion forward now, at least a step, let me quickly answer D.'s question below, which sought to clarify the scope of the "exchange criterion" I've put forward for category three cases. D., your examples numbered (1) through (3) meet the criterion I have in mind, and are clearly aggregable. The rest do not. A common-sense notion of "commerce" is pretty helpful in drawing the line here. Marriage is still a status relationship, not commerce, and the common law still treats it as such. The exchange of gifts is not commerce either. I suppose the criterion could be refined as "exchanges for value" or perhaps "exchanges of a class that typically involves bargaining or arm's-length dealing." Again, this is supposed to be an originalist criterion; it is meant to reflect the historical understanding of "commerce."

Now back to combing old briefs and blurbing cases.

D:
Its been a busy day: I've been on my feet since 7 this morning. In the town I work, lawyers do not wake up at 7 in the morning. But, alas, we had argument this morning (the Judge was sphnix-like, but wish us luck!), and then I've been doing some document review the rest of the day.

A few words on document review. I love document review. I understand how it can be terrible, especially over several months. But for a few days at a time, it is extremely restful. No one bothers you. No one looks over your shoulder. You just immerse yourself in boxes full of other people's stories. It really is a great break from drafting briefs, letters, and the other minutia of daily life in a corporate firm.

But the pressures of this *particular* document review prevent me from rejoining the substance of either the C.C. or the three-strikes dicussion. P., carry the load for us. And, readers, if you are interested check out this blog I just discovered. A smart guy, who also seems to find Cass Sunstein objectionable. Check out the blog!

On "three strikes" and doing what the statute says

PLAINSMAN: [We'll return to the Commerce Clause presently.]

As our readers know by now, today was a big day at the Supreme Court. The two "Megan's Law" cases were handed down; but as I haven't followed them closely, I have nothing intelligent to say about them. Go check out Howard Bashman tonight.

The two companion Eighth Amendment "three strikes law" cases also came down. Both sentences were upheld, as I predicted. Ewing v. California went 5-4, as I predicted. So did Lockyer v. Andrade, the AEDPA habeas case, which I definitely did not predict.

Let me just say this. I understand, and fully respect, Justices Stevens, Souter, Ginsburg and Breyer's decision to dissent on the merits in Ewing. The sentence at issue was indeed a very severe one, and the contours of the Court's prior Eighth Amendment jurisprudence were somewhat cloudy. However, I find these Justices' decision to dissent in the Andrade case quite difficult to defend or understand, despite the comparable severity of the sentence. There has been a good deal of complaining about the Andrade decision so far on the blogosphere. I strongly disagree that the decision was in any way improper. Rather, under governing law, the Ninth Circuit was wrong to grant Andrade habeas relief, and the Supreme Court should have said so unanimously.

Here is why. It is settled (e.g., Williams v. Taylor (2000); Bell v. Cone (2002) (8 to 1); Early v. Packer (2002) (9 to 0)) that under the AEDPA, the question a federal habeas court must decide is not the usual question a court asks itself, namely, "what do we think would be the correct legal holding on the constitutional issue posed in this case?". Instead, the federal habeas court's review is constrained. It must ask, "did the state court, in denying relief, not only err, but make an objectively unreasonable legal judgment in light of established law?" And that is simply not an available conclusion with respect to the state court's decision to deny relief in Andrade.

After all, what was the established law? As I just noted, the Supreme Court's Eighth Amendment precedent, as it relates to noncapital sentences like those imposed on Ewing and Andrade, is unclear. See any leading criminal law treatise, e.g., the redoubtable Josh Dressler's. To the limited extent the established law is clear, it indicates that a federal court's Eighth Amendment review of the length of a sentence is very limited, very deferential -- even with respect to potential life sentences like Andrade's. For example, in Harmelin v. Michigan (1991), the Court upheld a life sentence without parole as punishment for a first offense of possessing 650 grams of cocaine. Not even possession with intent to sell; either, just possession. And in an earlier case, Rummel v. Estelle (1980), which Harmelin specifically acknowledged as still good law, the Court upheld a life sentence under a recidivist statute for a defendant who committed an $80 credit card fraud (with three prior offenses for nonviolent theft and fraud). Rummel and Harmelin were prominent parts of the legal backdrop against which the Ninth Circuit was supposed to evaluate the reasonableness of the state court's rejection of Andrade's habeas claim.

Moreover, while the defendant's triggering crimes in Andrade were relatively minor thefts, they were not the real reason he got the two 25-to-life sentences. The sentence was imposed because of Andrade's recidivist history of serious felonies. These included (just as a sample) a felony conviction for drug trafficking, as well as multiple felony convictions for first-degree residential burglary, which were proved at his trial. In light of the law and the facts, then, is it really clear -- clear enough that the contrary holding is not just wrong but "objectively unreasonable," remember -- that Andrade's sentence wasn't acceptable under Rummel and Harmelin? No way.

And as I've tried to show, this is true even if you think (as I do) that Andrade would have had, like Ewing, a decent case for relief on plenary review. For that matter, it's true even if you think (as I do) that California's "Three Strikes" law is often harsh in its operation, and is of questionable wisdom. That was not the issue in Andrade. The Ninth Circuit missed badly on this one, as did the four dissenting Justices.

____

D:

[A prefatory note Do you, the readers of this blog, also think that "P" agreed to take the commerce clause topic up just so he could write "Not to wax Hegelian"? This is P's version of the line from Pulp Fiction: "I'm gonna git Medieval on your ass." There is nothing scarier than a neo-formalist talking about the C.C.: they eat this stuff up!]

At any rate, lets get right to the substance.

Aggregation Under the CC
P, you propose a relatively novel formulation of prong three - "look for an exchange; if it's there, permit aggregation". To make sure I understand how this is going to work, tell me, if you would, whether each (or any) of the following "transactions" produce cognizable exchanges that give rise to your proposed formal test:

(1) A gives B $10 in return for Good X.
(2) A gives B $10 in services in return for Good X.
(3) A gives B $10 in goods in return for Good X.
(4) A gives B $10 in goods. B gives A Good X. Both believe that they are giving gifts.
(5) A publishes an article in a magazine praising B. B, in return, gives A good X.
(6) A compels B to work to produce Good X in a slave labor factory for free.
(7) A and B enter into a contract of marriage, thinking that they are exchanging something of worth.
(8) A buys, from B (the state commissioner of wildlife), a license to hunt wildlife.

And so on. I'm not going to assert that the formulation isn't workable - maybe it is - but it seems very easy to push the limits of what an exchange is to make it look less or more economic. It also seems difficult to determine what to do in the common situation of implicit exchange: the parties make a de facto deal.

You might point out that implicit exchanges are less likely, when aggregated, to produce cognizable interstate effects. So Congress, rightly, would be prohibited from regulating a local flea market's barter economy. That makes some sense, I suppose, but there are definition problems. Aren't there?

Facial Challenges:
One of our readers, Marty Lederman, disagrees with me and (it seems) agrees with you about the cloning law's facial constitutionality. He writes:

"Its facial constitutionality is clear as day under governing precedents because the bill contains an 'in or affecting interstate commerce' jurisdictional element. The Court has often said that such language should be understood as reflecting Congress's intent to regulate to the fullest extent of its Commerce power -- and so, by definition, the statute is *facially* constitutional. "

You note that Morrison does not preclude my argument, although it must be admitted that I was a little quick on the draw. It is clearly right that there are some constitutional applications of the law (as I myself noted in the original post - the bill has a "transporting embryos" section that isn't a "third prong" question at all). So, why would it be facially unconstitutional?

Well, as we've discussed off-line, there is a possible void-for-vagueness challenge out there, as this is a criminal sanction. "A penal law is void for vagueness if it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited” or fails to establish guidelines to prevent “arbitrary and discriminatory enforcement” of the law." Chicago v. Morales (O'Connor, concurring) citing Kolender v. Lawson, 461 U.S. 352, 357 (1983). As I understand it, void-for-vagueness challenges of criminal laws are facial challenges.

Is this law subject to a void-for-vagueness challenge? The key question, not surprisingly, is whether the jurisdictional hook of "in or affecting interstate commerce" provides possible subjects of sanction with sufficient notice, and possible prosecutors with minimal standards guiding their discretion.

This doesn't seem to me to an especially easy question to answer if you take seriously the Court's recent move toward cracking down on commerce clause legislation. Suppose you are a doctor, hoping clone a human(or, to use a less loaded phrase, to use a somatic cell to produce a fertilized oocyte of the identical genetic makeup of the original somatic material, or, being lawyerly, "TUASCTPAFOOTIGMOTOSM"). In return for each clone you make, you receive $100. But, you are told that if you perform cloning in interstate commerce, you face ten years in jail. When asking whether your cloning is interestate commerce, you learn that the term means all "exchanges" that, when aggregated, have substantial affects on interstate commerce. You ask yourself: is it permissable to make one clone? ten? five hundred? What standards will guide prosecutors in determining what "substantial affects" means. Does it matter if there are other cloning doctors in your state? Does it matter if you are the first doctor nationally to try this? Is it your responsibility to monitor the size of the national business in cloning, bowing out the moment its interstate effects become "substantial"? Would it matter if, say, you exchanged received services worth a $100 for your cloning time (e.g. a lawyer agreed to represent you in a potential criminal suit in return for cloning his recently deceased, highly competent paralegal)? Would it matter if the cloning did not itself raise money but the collateral enterprises did (as I discussed yesterday, selling t-shirts at the clinic where you give away the products of TUASCTPAFOOTIGMOTOSM).