Academic highlight: Hamburger and Siegel on the constitutionality of Chevron deference

Academic highlight: Hamburger and Siegel on the constitutionality of <em>Chevron</em> deferenceIs Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law. In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s […]

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Academic highlight: Hamburger and Siegel on the constitutionality of <em>Chevron</em> deference

Is Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s governing statute. Although the doctrine has been narrowed in recent years, it has remained a bedrock principle of administrative law. Recently, however, both Justice Clarence Thomas and Justice Neil Gorsuch have questioned the constitutionality of Chevron deference. Just a few weeks ago, in his opinion for the court in SAS Institute v. Iancu, Gorsuch began by noting SAS Institute’s proposal that the Supreme Court eliminate Chevron deference altogether — an idea that the court chose to “leave for another day” rather than reject out of hand. Congress has also expressed concern. In both 2016 and 2017, the House of Representatives voted in favor of a bill abolishing Chevron deference on the ground that it is “difficult, if not impossible, to square with separation of powers.” Now, legal academics are taking sides in the debate as well.

Professor Philip Hamburger is one of Chevron’s skeptics. In his 2016 article, “Chevron Bias,” he argues that courts have a constitutional obligation to exercise independent judgment when interpreting statutes. In Marbury v. Madison, Chief Justice John Marshall declared, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Yet Chevron gives agencies the power to “say what the law is,” requiring courts to accept an agency’s reasonable interpretation of a statute even when the court would have reached a different conclusion. Worse, says Hamburger, Chevron deference produces “systemically biased judgments” by requiring that judges defer to the reasoning of a self-interested party to the case, which he concludes is a “brazen violation” of the Fifth Amendment’s due process clause.

In a recent essay, “The Constitutional Case for Chevron Deference,” professor Jonathan Siegel comes to Chevron’s defense. Accepting for the sake of argument assertions by Hamburger, Gorsuch and others that courts must exercise independent judgment about the meaning of federal law, Siegel maintains that Chevron deference is fully consistent with this role. Chevron does not delegate the interpretive function to agencies, but rather asks courts to view ambiguous statutes as creating a menu of permissible actions from which the agency can choose. As Siegel puts it, “[a]n interpretation that determines that a statute delegates power to the executive is still an interpretation.” For the same reason, he disagrees that Chevron deference requires courts to affirm agencies’ self-interested interpretations of statutes. Congress may permissibly vest policymaking discretion in federal agencies; allowing the agency, rather than the court, to choose among the options permitted by ambiguous statutory language does not violate due process. In short, Congress is free to draft ambiguous statutes that operate as delegations of policymaking power to agencies.

Siegel acknowledges, however, that Congress may not have intended courts to treat statutory ambiguities as delegations of authority to agencies. He does not defend Chevron deference against this critique, but he points out that Congress’ silence on this question implies that it has acquiesced in the practice. That said, the House of Representatives has now twice passed a bill that would abolish Chevron deference, suggesting that the debate might ultimately be settled in the halls of Congress rather than by the justices of the Supreme Court.

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Academic highlight: The Supreme Court, the Rules Committees, and amicus practice

Academic highlight: The Supreme Court, the Rules Committees, and amicus practiceScott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law. The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas […]

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Academic highlight: The Supreme Court, the Rules Committees, and amicus practice

Scott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law.

The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas of the law in which these powers shift or overlap among the branches.

Court rulemaking is one of those areas. With few exceptions, Congress has the sole constitutional authority to make procedural law for the lower federal courts. In practice, though, things are more complicated. Because the judiciary’s expertise in court procedure exceeds the legislature’s, Congress has delegated its authority to make general rules of federal-court practice and procedure to the Supreme Court in a statute called the Rules Enabling Act. The REA prescribes some procedures for court rulemaking and delegates other rulemaking procedures to the Judicial Conference, which is a group of federal judges prescribed by statute.

Under the REA and the rules of the Judicial Conference, lower-court rulemaking goes through the following stages. The Rules Committees (the Standing Committee and the various Advisory Committees), whose memberships are composed primarily of judges and practitioners with firsthand working knowledge of the rules, meet often throughout the year, hold public hearings and take public comments on proposed amendments, commission studies of the rules through the Federal Judicial Center and the Administrative Office, and publish detailed minutes of their meetings. This rulemaking process is open and democratic, led by experts, with consultation from a wide spectrum of practitioners and interest groups.

Rulemaking recommendations proceed from the Rules Committees through the Judicial Conference, to the U.S. Supreme Court, which has the final approval authority under the REA (subject to a veto by Congress). However, by the time rule proposals get to the Supreme Court, there is little left for the justices to contribute. Compared to the Rules Committees, the Supreme Court is neither particularly expert nor particularly interested in lower-court rules. As a result, the Supreme Court has become a rubber stamp — sometimes expressly so — in the rulemaking process.

After the rules go into effect, however, the courts take over and the Rules Committees take a back seat. Federal cases presenting issues of rule interpretation frequently make their way to the Supreme Court for resolution, and the court is solely responsible for providing an authoritative interpretation of those rules.

The Supreme Court, however, is not the best interpreter of lower-court rules. The court may lack a full understanding of and appreciation for relevant information, such as rulemaker intent, the purpose of the rule, how the rule interrelates to other rules, the history of the rule and relevant amendment proposals, the “legislative facts” underlying the rule, and how the rule currently works in practice. Institutionally, the Supreme Court is guided by the parties’ arguments, principles of stare decisis, and the narrow dispute at stake rather than broader questions of the rule and its interrelatedness to other rules or statutes or interests.

The Supreme Court faces similar informational and institutional deficiencies when it interprets a statute or agency rule, but in those cases, the government agents involved in the statute or agency rule often offer assistance to the court via an amicus brief. The expertise and knowledge of the government can help the court to interpret the law correctly and avoid unintended consequences.

But court rules are different because the Rules Committees do not participate in any kind of amicus practice. The Supreme Court’s deficiencies thus remain in many rule-interpretation cases.

These deficiencies have led to some questionable opinions. In Bell Atlantic v. Twombly, for example, the court was asked to interpret the standards for pleading a civil case under Rule 8 of the Federal Rules of Civil Procedure. In doing so, the court didn’t really rely on the text of the rule. Nor did it rely on the history of the rule or the policies that animated its drafting. Instead, the court relied on its own vision of pleading policy as a screen to protect defendants from high-cost, low-merit lawsuits. In the process, the court grafted new language onto Rule 8, overruled a prior case that had been taught to generations of lawyers, reinvigorated an antiquated distinction between legal conclusions and factual allegations, and marginalized key tools for protecting defendants in other rules.

The court did all of this without any input from the Rules Committees, which could have provided the court with a wide range of relevant information. The committees could have informed the court about research tending to show that defendants don’t need pleading-stage protection in the vast majority of cases, the efficacy of existing tools for protecting defendants in outlier cases, the historical difficulties of parsing the distinction between legal conclusions and factual allegations that led to the promulgation of Rule 8, and the burdens that heightened pleading standards impose on plaintiffs with meritorious cases.

Cases like Twombly raise this question: Should the committees charged with the front-line work of studying the rules and proposing rules and rule amendments have an opportunity to voice their views when those rules are up for interpretation by the Supreme Court?

In a recent article in the Virginia Law Review titled “Should the Rules Committees Have an Amicus Role?,” I argue that the answer is yes.

One might ask why the solicitor general can’t fill this role. When the United States is not a party, the solicitor general does occasionally file amicus briefs on behalf of the United States in cases involving rule interpretation. However, the solicitor general often has the same deficiencies as the court in these cases. Worse, the solicitor general primarily seeks to advance the interests of the federal government as a litigant, especially for pro-prosecution interpretation of federal criminal rules (because the Department of Justice is often a prosecutor) and pro-defendant interpretation of federal civil rules (because executive-branch officials are often sued in civil cases). And, as an executive-branch officer who serves at the pleasure of the president, the solicitor general often represents the political interests of the executive branch, or, even more narrowly, the president. These political and branch-specific interests can collide with the judiciary’s interest in fair and workable court rules.

Indeed, the solicitor general filed an amicus brief in Twombly supporting the defendants. The brief struck a strongly partisan chord on rule interpretation that the Supreme Court largely adopted, with little resort to the text or history of Rule 8. Notably absent from the brief was any mention of the kinds of useful, true-friend-of-the-court information the Rules Committees could have provided: knowledge of other protections against excessive discovery costs, empirical evidence of the costs of meritless suits or the incidence of discovery abuse, or any understanding of how other rules might operate in tandem with Rule 8.

Of course, if the United States is a party (which it is in most criminal cases and many civil cases), the solicitor general’s office won’t file an amicus brief but instead will file an adversarial merits brief with the primary goal of winning the case, as it did in Ashcroft v. Iqbal, in which the office used its achievement in Twombly to secure a dismissal for the defendants it represented in Iqbal.

In my paper, I argue that amicus participation by the Rules Committees could support better – or at least more transparent — decisionmaking by the Supreme Court.

What might this look like? Two primary possibilities are what I call the weak “consultancy” role and the strong “independent amicus” role.

The weak “consultancy” role would require the solicitor general’s office to consult with the Rules Committees in any amicus brief it files on an issue of rule interpretation or application. After all, the solicitor general usually consults with agencies in agency-rule cases. Currently, however, the norm is that consultation is neither sought by the solicitor general nor provided by the Rules Committees.

That norm should be changed. Consultation would allow the Rules Committees’ knowledge and interests to be voiced by perhaps the most effective and frequent Supreme Court advocate, one who is highly credentialed and respected, is a Supreme Court specialist, has few financial constraints, and boasts an unparalleled win rate. No law would need to be changed to authorize this weak form of Rules Committee participation. The solicitor general and the Rules Committees would only need to normalize the practice of consultation and craft internal rules for its implementation.

This weak consultancy role would be insufficient, of course, when the solicitor general refused to represent the views of the Rules Committees. This might occur if the solicitor general were already representing a member of the executive branch as a party, if the solicitor general refused to file an amicus brief in a private-party case, or if the solicitor general advanced priorities in an amicus brief that did not represent those of the judicial branch.

Those situations might justify giving Rules Committees independent authority to file an amicus brief. Congress would have to authorize this power through statutory amendment, but in similar circumstances Congress has given independent amicus authority to other federal entities, including the Federal Elections Commission, the Senate’s Office of Legal Counsel, and special prosecutors appointed under the Ethics in Government Act of 1978.

The logistics of an effective amicus role — whether weak or strong — are, admittedly, difficult. The Rules Committees are not designed for adjudicative advocacy, either in resource support or focus. To address some of these concerns, I propose to use the Administrative Office of the United States Courts, which has an Office of the General Counsel that already provides legal counsel and services to the Judicial Conference and helps support the rulemaking process by assigning career staff attorneys to assist the Rules Committees. Adding an amicus role would impose some increased burden on that office, but its involvement is likely to be limited to specific contexts, consist of presenting information already in the hands of the Rules Committees and the Administrative Office, and be achieved through consultation or briefs without oral argument.

Of course, the Rules Committees themselves might resist an amicus role, perhaps to avoid the appearance of partisan advocacy. But the amicus role I envision would be as a true friend of the court, offering neutral expertise on “legislative facts” like discovery expense or judicial-management issues and how the rules work in the lower courts; information about possible changes to rules currently at issue in a case; the historical context of the origins of a rule and whether the bases, policies and justifications for the rule continue in force today; and broader perspectives about the rules that the parties, with their more narrow focus, might otherwise ignore. Conveying this information in an amicus brief surely is no more political or partisan than rulemaking itself. Participation as a true friend of the court would fulfill the prescribed role of the Rules Committees: to study the rules and to provide information and recommendations to the Supreme Court.

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Academic highlight: Hinkle and Nelson look at why some dissents become doctrine

Academic highlight: Hinkle and Nelson look at why some dissents become doctrineSome of the more memorable phrases from the Supreme Court’s history come from dissents, not the court’s majority opinions. Justice Ruth Bader Ginsburg’s analogy in her dissent in Shelby County v. Holder – that invalidating a section of the Voting Rights Act is “like throwing away your umbrella in a rainstorm because you are not getting […]

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Academic highlight: Hinkle and Nelson look at why some dissents become doctrine

Some of the more memorable phrases from the Supreme Court’s history come from dissents, not the court’s majority opinions. Justice Ruth Bader Ginsburg’s analogy in her dissent in Shelby County v. Holder – that invalidating a section of the Voting Rights Act is “like throwing away your umbrella in a rainstorm because you are not getting wet” – made its way into a new documentary about the justice and arguably contributed to her rise to social media stardom.

Two political scientists, Rachael Hinkle and Michael Nelson, take a look at the memorable language in this dissent and others in a forthcoming article, “How to Lose Cases and Influence People.” As Hinkle and Nelson note, “anecdotal evidence of change in doctrine fueled by a past dissent abounds.” At the same time, there’s little in the way of empirical scholarship as to why some dissents eventually change doctrine, and others don’t. According to Hinkle and Nelson, theirs is “the first large-scale empirical examination of the legal influence of dissenting opinions in the US Supreme Court.”

The authors focus their analysis on “the language used to craft” dissents, which they consider the “one key factor … squarely in [a justice’s] hands – how much effort they devote to making their words memorable.” “The sine qua non of influence is recall,” Hinkle and Nelson suggest, because “a dissent that is forgotten cannot be expected to influence legal development.” Starting from a dataset of 5,795 dissenting opinions written from 1937 to 2014, the authors identify 923 dissents that “received a non-negative citation from at least one subsequent majority opinion.”

According to the authors, existing research in political and computer science has determined that two types of language are particularly memorable – emotional language and distinctive language.

Borrowing from linguistic tools and approaches, Hinkle and Nelson use the Linguistic Inquiry Word Count software to calculate “word counts for a number of psychologically significant categories of vocabulary including words that indicate both positive and negative emotion.” This approach requires some modification because some words, like “complaint,” do not carry the same emotional weight in the legal context as in common English usage.

Hinkle and Nelson define as distinctive “any word that is in the bottom ten percent of the relevant frequency distribution.” Both “umbrella” and “rainstorm,” from Ginsburg’s Shelby County dissent, are classified as distinctive by this measure. As an example of the divergence between legal English and everyday English, the authors note that the words “omnibus” and “butt” have each been used an identical 250 times in Supreme Court majority opinions through the October 2015 term. In general usage, “these two words are clearly not used with similar frequency,” the authors write, just as “umbrella” and “rainstorm” might not seem like distinctive words outside the Supreme Court.

The authors find support for two hypotheses. First, their research shows that increases in the amount of emotional language are positively associated with a dissent’s effect on legal development. However, this effect only applies to negative emotional words; “positive emotion words do not have a statistically significant impact.” Although they had not originally expected this result, it does accord with existing research showing that “negative emotion is more easily recalled than positive emotion.”

Second, Hinkle and Nelson’s research shows that increases in the amount of distinctive language are also positively associated with a dissent’s influence on future cases.

Abortion caselaw provides an example of this phenomenon. As Hinkle and Nelson explain, the Supreme Court in the 1992 case Planned Parenthood v. Casey applied an undue burden test to abortion restrictions, a significant shift from the strict scrutiny test applied in the 1973 case Roe v. Wade. Justice Sandra Day O’Connor first suggested this change in legal doctrine in her 1983 dissenting opinion in City of Akron v. Akron Center for Reproductive Health. O’Connor’s City of Akron dissent used 55 negative emotional words and 126 distinctive words, well above the averages in those categories across all dissents of 27 and 31, respectively. Although many factors contribute to the development of legal doctrine, O’Connor’s use of negative-emotion words and distinctive words likely made her dissent “stand out and, therefore, have a greater effect on the development of the law.”

Hinkle and Nelson also address a third possible explanation for a dissent’s future impact – the strength of the dissenter’s views on the matter. To address this possibility, the authors contrast dissents concluding with “I respectfully dissent” with those simply saying, “I dissent.” The “seemingly innocuous” latter phrase “is rendered vituperative,” the authors explain, because of a norm established under Chief Justice Earl Warren of justices explicitly stating their respect for their colleagues. In accordance with this norm, only six percent of the dissents in the first five terms of the Roberts court included the blunter ending. Nevertheless, although the authors caution against “interpreting a null result with meaning,” they find no statistically significant relationship between this variable and the likelihood of a dissent’s future citation in later terms.

Hinkle and Nelson’s data concerning the average number of negative words justices use in dissenting opinions reveal an interesting trend. In looking through their tables, I noticed that out of 37 justices who joined the court in 1937 or later, the 10 justices with the highest average number of negative words per dissent written through 2014 all joined the bench after 1981. Ginsburg, the one justice to join the bench since 1981 who is not part of the top 10, comes in at 16. (Justice Neil Gorsuch is not included because he joined the bench after 2014.) After I pointed this out, Hinkle produced the graph below, which shows a consistent increase in the average number of negative emotional words.

Click graph to enlarge.

Hinkle, who has not been able to do extensive analysis on this new graph, told me that this increase in the usage of negative emotional words over time “is a bit of a puzzle.” One possibility might be that the total number of separate opinions is increasing over time. As a result, “justices may feel an increasing need to make their dissents stand out.” It’s also “conceivable that justices have long realized that negative emotional language is a way to catch attention and that the observed pattern is the result of a sort of ‘arms race’ in which justices realize they have to keep using more and more negative emotional language in order to garner readers’ attention.”

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Academic highlight: Chabot on the timing of justices’ retirements

Academic highlight: Chabot on the timing of justices’ retirementsIt’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to […]

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Academic highlight: Chabot on the timing of justices’ retirements

It’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to coincide with ideologically compatible presidents, and that many others choose not to do so even though they could. Even more interesting, Chabot found that those justices who do retire strategically are often disappointed by their replacements. Chabot concludes that “[l]imited success in obtaining like-minded replacements explains why Justices flout calls to retire to presidents who share their ideology.”

A justice’s greatest impact on the Supreme Court may come not from her decisions in individual cases, but from the timing of her retirement. The conventional wisdom holds that the justices choose to retire when an ideologically proximate president holds office, cementing their legacy and perpetuating their influence over the court long after they leave the bench. Indeed, the justices’ control over the timing of their retirements is a much-criticized feature of life tenure.

But Chabot’s study of Supreme Court justices’ retirements since 1954 undermines that view, contributing to the ongoing debate among legal scholars over the role of politics in the timing of judicial retirements. Chabot found that half of the 22 retirements over the last 64 years were not politically timed. Many justices are compelled to retire due to serious health problems. For example, Justice William Douglas suffered a stroke, forcing him to step down while Gerald Ford was president – a result he had hoped to avoid. (At one point Douglas declared: “Even if I’m only half alive, I can still cast a liberal vote.”) In the case of other justices, the presidency and Senate were controlled by ideologically distant political actors during the years leading up to their retirement, so they had no choice in the matter. Chabot explains that timing a retirement is particularly difficult for justices in the ideological center, such as Justices Sandra Day O’Connor and Anthony Kennedy, because their votes are not typical of the judges preferred by either the Democratic or Republican parties.

Chabot found that about half of the justices who retired since 1954 appeared to have timed their retirements to occur when ideologically compatible presidents were in office. But even so, they were often disappointed by the results. She concluded that “on average, voluntary retirees did not obtain significantly more like-minded successors than Justices who left involuntarily.”

Chabot’s surprising findings are due in part to her nuanced analysis of the preferences of the retiring justice. Some previous studies of judicial retirements conflated judicial ideology with the party of the appointing president. If a justice appointed by a Republican president retired during a Republican presidency, the justice was assumed to have achieved her goal of retiring during the term of an ideologically compatible president. But Chabot argues that a justice’s voting record is a more accurate measure of ideology than the appointing president’s political party. For example, Justice David Souter was appointed by President George H.W. Bush, a Republican, but he chose to retire when a Democrat was president and Democrats controlled the Senate – a choice that makes sense only when looking at Souter’s more liberal voting record. By the same token, O’Connor, appointed by a Republican, retired while a Republican was president. But her replacement, Justice Samuel Alito, is ideologically distant from her, and she has reportedly expressed disappointment in his performance.

Chabot acknowledges that her study focused on a small number of justices, and that the results might differ over time. She notes that “[i]f enough Justices voluntarily retire to ideologically proximate presidents, there is reason to think they would average significantly better outcomes than Justices who leave involuntarily.” Nonetheless, her study shows that it is difficult for a justice to time his retirement and that, even when a justice succeeds in doing so, his replacement might not vote as he would prefer. In other words, like presidents, retiring justices can find themselves unhappily surprised by the voting records of their successors.

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Academic highlight: The debate over nationwide injunctions

Academic highlight: The debate over nationwide injunctionsWhen, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions […]

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Academic highlight: The debate over nationwide injunctions

When, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions to halt policies granting deferred action to undocumented immigrants and accommodating transgender students in public schools; more recently, injunctions like these temporarily put a stop to President Donald Trump’s travel ban and blocked his rescission of deferred action for undocumented immigrants brought to the United States as children. Congress is considering legislation to regulate the practice, and some speculate that the Supreme Court may soon weigh in as well. In the meantime, legal scholars are debating the constitutional, systemic and policy concerns implicated by nationwide injunctions at conferences, during congressional hearings and in the pages of law reviews.

Legal scholars generally agree on few major points. First, the term “nationwide injunction” is misleading. As professor Howard Wasserman suggests, a better name might be “universal injunction,” because the debate is about whether injunctions can require the federal government to cease enforcing a law against nonparties, not whether the injunctions should apply nationwide. Second, these injunctions are a relatively new phenomenon and have been used with increasing frequency over the last decade. Third, nationwide injunctions are nonpartisan — they have been sought by individuals on both sides of the political spectrum to put a stop to policies they oppose. Fourth, nationwide injunctions come with costs that courts should consider carefully before imposing them.

From that common ground, scholars stake out different positions. Professors Samuel Bray, Michael Morley and Wasserman oppose nationwide injunctions in all or most cases. These scholars argue that such injunctions encourage forum shopping and politicize the judiciary, allowing plaintiffs to hand pick a single district-court judge who can then set policy for the nation. (It was no coincidence that Obama’s policies were challenged in the “red state” of Texas, and Trump’s in the “blue states” of California, Hawaii and Maryland.) They observe that nationwide injunctions are inconsistent with a judicial system that denies precedential value to district court decisions and typically requires named plaintiffs to meet class-certification requirements before obtaining relief on a collective basis. They also point out that such rulings put pressure on the Supreme Court to decide cases before they have been thoroughly debated in the lower courts. For all these reasons, these critics argue, courts should enjoin defendants from enforcing a law only against the plaintiffs in a particular case.

Other lawyers and scholars argue that in some cases nationwide injunctions are essential. (Full disclosure: I’m in this camp.) Such injunctions are at times the only way to provide complete relief to plaintiffs. For example, if a single African-American plaintiff sues seeking desegregation of a public school, an order requiring the school district to admit only that plaintiff will not alleviate her injury. Even if class certification is possible in such a case — and there are many barriers to certification — there is no reason a plaintiff should be required to bring a class action to vindicate her individual constitutional rights. And sometimes such injunctions are essential to avoid injury to the thousands of people affected by government action who cannot quickly file suit themselves, or who could not easily be included in a class — as was the case in the travel-ban litigation. Finally, in some cases anything short of a nationwide injunction is simply impractical. When a district court is asked to pass on the validity of an agency rule with nationwide effects — such as one affecting the air or water — it would be extremely difficult to enjoin application of the rule to some plaintiffs but not others.

As professor Suzette Malveaux has argued, nationwide injunctions are also essential to maintaining the balance of power among the three branches of government. Over the last few decades, executive power has expanded as Congress has been mired in gridlock, leading presidents from both parties to make sweeping changes in federal policies through unilateral executive action. These actions often affect thousands of people, many of whom are incapable of quickly filing lawsuits to put a stop to policies that they claim violate their rights. Malveaux argues that a ban on nationwide injunctions “would remove an important check on the executive branch,” further exacerbating the imbalance in power among the three branches.

Closely related to these systemic and policy concerns is the question whether federal courts have the constitutional authority to issue nationwide injunctions. Bray has argued that Article III of the Constitution limits the federal courts to providing remedies only to the plaintiffs, who have demonstrated their standing to sue. On the other hand, equitable remedies like injunctions have never perfectly tracked standing — for example, courts are willing to order prophylactic injunctions to prevent potential future injuries, even when those injuries would not have satisfied the “actual injury” requirement for standing. In any case, the Supreme Court has shown some flexibility when it comes to standing, such as by allowing plaintiffs to raise the rights of others and to bring moot cases to resolve an issue that is “capable of repetition, yet evading review,” and it has permitted associations to sue on behalf of their members.

The Supreme Court’s June 26, 2017, order narrowing, but keeping in place, a nationwide injunction against enforcement of the second version of the Trump administration’s travel ban suggests that the court has yet to see a constitutional problem with nationwide injunctions. As Bray has noted, however, the court has never squarely addressed the issue, and it has an institutional interest in ensuring that legal questions percolate in the lower courts. Now that nationwide injunctions are cropping up in multiple cases, Bray and others predict that the court will take up that question in the near future.

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Academic highlight: Telling stories in the Supreme Court

Academic highlight: Telling stories in the Supreme CourtLinda Edwards is a professor at UNLV Boyd School of Law. Among the welter of amicus briefs in Whole Woman’s Health v. Hellerstedt was a brief filed by 112 women lawyers. In it, these women told the world, many for the first time, that they have had an abortion. The brief marks their “coming out” […]

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Academic highlight: Telling stories in the Supreme Court

Linda Edwards is a professor at UNLV Boyd School of Law.

Among the welter of amicus briefs in Whole Woman’s Health v. Hellerstedt was a brief filed by 112 women lawyers. In it, these women told the world, many for the first time, that they have had an abortion. The brief marks their “coming out” to their professional world — a combative, masculine milieu where gender-based vulnerability can be the kiss of death.

But the brief is more than a public disclosure. These women spoke from inside the justices’ own rhetorical circle. As one of the brief’s authors explained, “It’s the Justices’ community—it’s their colleagues and people who have argued before them and former law school classmates and co-clerks.” For instance, a former clerk related her desperate situation after a contraception failure at a time when she “did not have the mental, emotional, or perhaps most importantly, economic resources to have a child.” A litigation partner at a large firm explained how her abortion as a teenager had allowed her to be the first in her family to graduate from high school, let alone become a lawyer. The overarching theme is that without reproductive choice, these women could not have participated fully in the same professional community in which the justices themselves have lived and thrived.

The brief is an example of a “voices brief,” the first new kind of appellate briefing since the iconic “Brandeis brief” in 1908. Voices briefs supplement an appellate record with stories drawn from the lives of strangers to the case. They are often told in the first person (e.g., “I had an abortion when I was a young lawyer, just out of law school and clerking for one of the best known and busiest federal trial judges in the country.”). Because the stories appear for the first time on appeal, they are subject to no evidentiary standards. They are offered instead as legislative (policy) facts, subject to no further testing than any other policy facts in an appellate brief.

Recent years have brought an explosion of voices briefs. Obergefell v. Hodges alone saw a total of 16 (more than 10 percent of the amicus filings in the case). And after the dust had settled in Whole Woman’s Health, 17 briefs had related stories of non-parties (more than 20 percent of that case’s amicus filings). Nor are voices briefs primarily a progressive strategy. In Obergefell and Whole Woman’s Health, voices briefs were roughly evenly submitted on both sides of the case. For deeply personal constitutional issues such as marriage equality and reproductive rights, voices briefs are now de rigueur.

Have these briefs influenced the Supreme Court? The truthful answer is that no one outside the court can really tell. The justices are unlikely to refer directly to voices briefs in their opinions, because controversial sources are not strategically helpful in a public document whose purpose is to justify and persuade. We can only speculate by reading judicial tea leaves.

For example, prior to Planned Parenthood of Southeastern Pennsylvania v. Casey, two voices briefs had been filed on the pro-abortion rights side. The briefs shared grim stories from hundreds of women who had sought illegal abortions out of desperation. Justice Anthony Kennedy’s Casey opinion seemed to echo the pro-abortion rights voices briefs, referring to women’s suffering as too intimate and personal for the state to control. Later, in Gonzales v. Carhart, after the filing of an anti-abortion voices brief on behalf of women who later regretted their abortions, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” We might wonder to what extent Kennedy’s comments in each case may have been influenced by the voices briefs he had presumably read.

As recently as Obergefell, we may have seen signs of influence. In Obergefell, nine voices briefs were filed in support of marriage equality. The briefs vividly recounted stories of the love, struggle and suffering of committed same-sex couples. The stories explained why marriage is important to them and to their families. They wanted to marry for all the reasons that prompt any couple to want to marry. Those same themes were eloquently reflected in the final paragraph of Kennedy’s deciding opinion:

As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Although the paragraph mentions only the petitioners, it may not be too much of a reach to think that Kennedy had others in mind as well.

Even Justice Antonin Scalia may have been influenced by some of the Obergefell voices briefs, at least the seven filed in opposition to marriage equality. Those briefs told stories from the children of same-sex relationships, relating the harm those children said they suffered. Then, in oral argument, Solicitor General Donald Verrilli maintained that there was no evidence of harm to children. Scalia interrupted him to point out that some of the briefs had contradicted that statement.

Of course, all this speculation is merely that. We are not likely to know whether and how voices briefs may persuade any individual justice in any individual case. But influence is a much larger and more multifaceted concept than simply winning and losing. A brief might influence the legal path the Supreme Court selects to justify that outcome, such as the selection of a standard of review or a governing legal standard. Or it might influence a key policy argument on which the court relies or an assessment of the facts. It might influence the scope of the decision. It might influence the tone in which the opinion is written. Given that the justices sit on the court for many years, a voices brief might influence a future case as well. And even if there is no influence at all, the opportunity to be heard is fundamental to effective government and is most important when the affected citizens do not prevail.

Voices briefs can be powerful, even heart-wrenching, and they may even have some influence, but are they appropriate advocacy? The time has come to ask some tough questions: Are they legally permissible? Theoretically legitimate? How do they compare with non-record sources commonly consulted by appellate courts, including internet explorations performed by judges at their own computers and experiments orchestrated in chambers? Are voices briefs really so different from the policy arguments we have accepted without blinking for over 100 years?

These foundational questions quickly take us into even deeper waters — legal theory, framing, narrative theory and cognitive science. The briefs prompt us to look at constitutional deliberation in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around.

In an article published in the Yale Journal of Law and Feminism, I’ve argued that voices briefs are not as radically new, at least in function, as they first appear. And because they are offered publicly, unlike internet research done privately in chambers, they are less problematic than many other sources that clearly influence today’s Supreme Court. What’s more, cognitive science has shown that, far from introducing bias to a neutral process, voices briefs may be the only way to counter the pre-existing values bias that always accompanies human deliberation. And irrespective of outcome, voices briefs can encourage the court to write opinions that respect and value all sides of an issue, thus modeling better discourse in today’s polarized public square.

Voices briefs do prompt some misgivings. Like all briefing strategies, they can be misused, raising concerns about reliability, relevance, and the role of legislative facts on appeal. The article recognizes these concerns and proposes normative practices to improve reliability and utility.

Constitutional decisions should not be made either by polling citizens or by emotional reactions to tearful stories. Far from it. But neither should we entertain the fantasy that legal decisions can ever be made in a hermetically sealed environment. Especially when the briefs offer perspectives that may be outside the personal and professional experiences of the justices, there is little to lose and much to gain when amicus filers share their stories.

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Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument

Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argumentSavvy litigators can often guess the outcome of a Supreme Court case by observing the oral argument. But it might also be possible to make that kind of prediction scientifically, through empirical analysis of the justices’ interactions with the advocates and with each other. In a recent paper, Tonja Jacobi and Kyle Rozema studied oral arguments from […]

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Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument

Savvy litigators can often guess the outcome of a Supreme Court case by observing the oral argument. But it might also be possible to make that kind of prediction scientifically, through empirical analysis of the justices’ interactions with the advocates and with each other. In a recent paper, Tonja Jacobi and Kyle Rozema studied oral arguments from 1960 through 2015 and found that when justices interrupt each other during oral argument, they are seven percent less likely to vote together in that case. These findings add to existing data analyzing the relationship between oral arguments and the outcome of cases. A 2009 study by Timothy R. Johnson, Ryan C. Black, Jerry Goldman and Sarah Truel found that the advocate who is asked more questions is more likely to lose the case, and Bryce J. Dietrich, Ryan D. Enos and Maya Sen were able to accurately predict many of the justices’ eventual votes in a case solely through measurement of their vocal pitch at oral argument. Taken together, these studies suggest that if we crunch all the right data, we can guess how the justices will rule months before they tell us.

Jacobi’s earlier study of interruptions showed that female justices were more likely to be interrupted by their colleagues and the advocates than were male justices. This time, Jacobi and Rozema were interested in what interruptions tell us about how the justices will vote. They hypothesized that interruptions correlate with voting disagreements between the two justices involved. The authors realized that interruptions might signal something else — perhaps a broader conflict between two justices unrelated to a specific case, or an effort by those justices who generally speak less to get a word in edgewise. But after controlling for these and other possibilities, Jacobi and Rozema found that justices who interrupt each other are more likely to disagree on the outcome of the case.

The authors acknowledge that the data does not reveal the causal relationship between interruptions and voting agreement. The justices may disagree on a case outcome in part because of an interruption that occurred during the argument, or they may interrupt each other because they already know going into the oral argument that they disagree on the outcome of the case (though the latter explanation seems far more likely).

The reasons for interruptions also are unclear. The justices may be genuinely trying to persuade each other, or they may be grandstanding for the audience and the press. Or maybe none of the above. Amusingly, the authors speculate that perhaps the “interrupting Justices … simply cannot stop themselves” from jumping in before a colleague has finished her sentence, particularly in cases in which they disagree.

Jacobi and Rozema’s study is interesting for a number of reasons, but its most obvious value is in providing advance notice to the parties and the public of how the justices will vote in a given case. Today, we rely solely on sophisticated observers of oral argument to give their views about who will win. We might do better to create computer programs that can count the number of questions, identify interrupters and interruptees, and measure vocal pitch. If we input all the right data, we might find that the written opinions we wait for breathlessly every June just confirm what we already knew.

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Why justices attend the State of the Union: Two political scientists focus on positivity bias

Why justices attend the State of the Union: Two political scientists focus on positivity biasArticle II of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union.” House Speaker Paul Ryan, a Republican of Wisconsin, has invited President Donald Trump to deliver his first official “State of the Union” address on January 30, 2018. Just as the […]

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Why justices attend the State of the Union: Two political scientists focus on positivity bias

Article II of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union.” House Speaker Paul Ryan, a Republican of Wisconsin, has invited President Donald Trump to deliver his first official “State of the Union” address on January 30, 2018.

Just as the Constitution does not require a speech by the president (some have sent written messages), the justices of the Supreme Court do not have to show up for the event. There isn’t a time-honored, consistent norm of judicial attendance in American history. As Chief Justice John Roberts said in a 2010 interview, whether to attend is “up to each individual member of the Court.” Why a justice might make that decision – and why a majority of justices may have chosen to go to the past six speeches – is the subject of a recent article published by the Justice System Journal, “Keeping up Appearances: Non-Policy Court Responses to Public Opinion.”

Ryan Williams and Jacob Smith, two political scientists at the University of North Carolina, report empirical evidence suggesting that “the Court thinks attending the State of the Union can help to preserve its long-term legitimacy.”

These findings seem to substantiate the “strategic” model of judicial behavior, which presents the justices “as strategic actors who attempt to transform their policy preferences into law while operating within a system of constraints,” including the court’s institutional support from the president, Congress and the public. As Justice Felix Frankfurter famously noted in his dissent in Baker v. Carr (cited by the authors), “the Court’s authority—possessed of neither purse nor sword—ultimately rests on sustained public confidence in its moral sanction.”

Williams and Smith propose that the “strategic behavior” of the justices is not limited to legal work, such as their written opinions, but also includes their selective engagement in non-legal settings, such as the State of the Union.

Within the parameters of the strategic model, the theory of positivity bias suggests that the public’s “exposure to legitimizing symbols of law and courts” reinforces the perception that courts are apolitical and the public’s “underlying support for the Supreme Court’s legitimacy.” At the State of the Union – “the only regularly scheduled political event in which members of the Supreme Court appear on television” – “the appearance of the justices in their judicial robes, their conspicuous seating apart from members of Congress, and their refusal to participate in the standing ovations, clapping, and cheering that are hallmarks of the address expose the public to legitimizing symbols of the judiciary.”

Using data from 1974 through 2014, Williams and Smith analyzed the attendance of the individual justices in light of a “public opinion” variable. They created this variable by estimating the percentage of people expressing confidence in the Supreme Court one week before the State of the Union through survey questions reported to Gallup and other survey organizations. The authors also included other control variables “related to personal considerations facing the justices,” such as the number of confirmation votes a justice received and the length of tenure of a justice.

Across four logistic regression models, Williams and Smith found that “as the percentage of respondents who expressed a great deal or quite a lot of confidence in the Supreme Court increases, a justice is less likely to attend the State of the Union address.”

Williams and Smith also found an important countervailing measure: Justices are less likely to attend the State of the Union as the House of Representatives, the setting for the address, becomes more polarized. This finding also follows the expectations of the theory of positivity bias because justices do not want to be associated with partisanship, so they avoid polarized environments. Justice Clarence Thomas, who has attended less than a third of his possible State of the Union addresses, has said that he stopped attending because the speeches have “become so partisan and it’s very uncomfortable for a judge to sit there.”

Chief Justice John Roberts has called the State of the Union “a political pep rally.” In contrast to Thomas, though, Roberts maintains a perfect attendance record. Williams and Smith found evidence that chief justices – who “are particularly concerned with public opinion in order to protect the legitimacy of the Court,” according to earlier research — are more likely than associate justices to attend the State of the Union.

Another primary model for explaining judicial action isn’t supported by Williams and Smith’s findings. The “attitudinal” model assumes that justices are not constrained by a need to maintain public legitimacy because “the institutional structure of the American political system affords the Court sufficient insulation from the constraining influences of Congress and the president.” Under this model, justices make non-legal decisions (like attending speeches) for personal, ideological reasons rather than out of general concern about the court’s perceived standing. As a result, justices would be expected to attend speeches given by presidents with whom they agree and to avoid speeches by other presidents. The authors did not find a statistically significant relationship for this effect.

When asked whether the results of the study might be used after January 30, if a majority of the court attends Trump’s address, to infer that the justices are concerned about their own perceived legitimacy, Williams called that “a fair narrative.” “We see as an empirical fact that a majority of justices attend the State of the Union during times in which public confidence is lower,” he continued.

Williams cautioned against drawing hasty inferences from his and Smith’s research. For one thing, the authors did not ask any of the justices about their reasons for attending. “We don’t have a direct connection to the minds of the justices; we can’t provide irrefutable evidence that they attend to try to shore up their legitimacy,” he said.

The authors did provide a quotation from Justice Stephen Breyer, who has attended 95 percent of the State of the Union addresses given during his tenure on the court, in which he explains his plans to attend the 2011 speech in a way that accords with the theory of positivity bias:

I think it’s very, very, very important … for us to show up at that State of the Union, because people today, as you know, are more and more visual. I’d like them to read, but they are visual. And what they see in front of them in that State of the Union is the federal government, every part—the president, the Congress, the cabinet, the military, and I would them to see the judges, too, because federal judges are also part of that government.”

Williams also clarified that he and Smith studied the justices’ perception that attending the speech may increase the public’s sense of their legitimacy. They did not address whether the justices’ attendance in fact does have that effect.

Finally, Williams questioned the predictive powers of the findings given that the current president “has been a vocal critic of rulings on his immigration executive order, has called Ruth Bader Ginsburg ‘an incompetent judge,’ and has made other attacks on the judicial system.”

“Ultimately, our results suggest competing considerations for justices, particularly for an address given in a hyper-partisan environment and by an atypical president,” Williams suggested. “Justices can either attempt to mitigate low public confidence in the institution by participating in a high-profile event and emphasizing the Court’s uniqueness, or they can avoid the address for partisan, ideological, or strategic reasons.”

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Academic highlight: Vázquez and Vladeck on the constitutional right to post-conviction review

Academic highlight:  Vázquez and Vladeck on the constitutional right to post-conviction reviewDid the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to […]

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Academic highlight:  Vázquez and Vladeck on the constitutional right to post-conviction review

Did the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to habeas review in some court in at least some circumstances — upending the last 50 years of precedent and federal legislation strongly suggesting otherwise. To be sure, Montgomery didn’t say so explicitly. The court held only that a state court sitting in habeas was required to give retroactive effect to the Supreme Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment prohibits the imposition of mandatory life sentences without parole for juveniles. But Vázquez and Vladeck argue that Montgomery‘s holding necessarily rests upon a constitutional right to post-conviction collateral review — even if the court failed to realize it at the time.

wide-shot with Kyle Duncan at lectern for petitioner

Courtroom during oral argument in Montgomery v. Louisiana (Art Lien)

To understand Vázquez and Vladeck’s argument, we first have to revisit some background principles governing habeas review. First, collateral review of state convictions – that is, as the Supreme Court put it in 2011 in Wall v. Kholi, “judicial review that occurs in a proceeding outside of the direct review process” — is available in most state courts under state law. Second, federal statutes authorize federal courts to provide collateral review of those state court convictions as well — either after the state collateral review process is finished, or in place of it, and federal courts also provide collateral review of federal convictions. Third, the Supreme Court established in Teague v. Lane that habeas petitioners normally cannot benefit from a “new rule” of constitutional law announced by the Supreme Court after their convictions have become final. But Teague also recognized an important exception to this anti-retroactivity principle: If a Supreme Court opinion creates a “new rule” that changes the substantive law under which the prisoner was convicted and sentenced (like the Eighth Amendment rule articulated in Miller), then that new substantive rule can be applied by a state or federal habeas court on collateral review.

Montgomery turned that “can” into a “must.” In 1970, Henry Montgomery was sentenced to life without parole for a crime he committed when he was seventeen years old. In July 2012, Montgomery filed a habeas petition in state court, arguing that the Supreme Court’s June 2012 decision in Miller prohibiting mandatory sentences of life without parole for juveniles should be applied retroactively to require his release, or at least his resentencing. The Louisiana state court denied Montgomery’s petition, and Montgomery filed a petition for review in the Supreme Court. By a 6-3 majority, the Supreme Court ruled in Montgomery’s favor. The court held that Miller’s bar against mandatory sentences of life without parole for juveniles applies retroactively in habeas proceedings because it falls within the Teague exception for new substantive rules. But to reach that issue, the court first had to decide a harder jurisdictional question: Do state courts sitting in habeas have a constitutional obligation to apply new rules retroactively, or are they free to craft their own state law rules governing the scope of habeas relief? The Supreme Court held for the first time that state courts must give retroactive effect to new rules of substantive law on collateral review.

Vázquez and Vladeck argue that this jurisdictional holding carries enormous significance. The requirement that states recognize the Teague exception in their own collateral post-conviction proceedings rests on the unstated assumption that prisoners such as Montgomery have a constitutional right to collateral review in some court, whether state or federal — an abrupt departure from the conventional wisdom that neither forum is constitutionally obligated to grant habeas relief to state prisoners seeking post-conviction review.

In fleshing out the consequences of Montgomery’s holding, Vázquez and Vladeck address a number of complex doctrines governing litigation in the federal courts. If the Constitution requires habeas review for prisons in some court, then the next question is which court — state or federal? Vázquez and Vladeck argue that state courts must provide collateral review for federal claims under the same long-recognized supremacy clause principles that mandate that states provide a forum for the adjudication of all types of federal claims. This conclusion is also in accord with the Constitution’s so-called “Madisonian Compromise,” under which Congress can choose whether to establish the lower federal courts. If habeas review is constitutionally required, and if Congress has the constitutional authority to abolish lower federal courts at any time, then it follows that state courts have a constitutional obligation to grant collateral review of state convictions in habeas, at least when federal courts are unavailable.

When it comes to federal prisoners, the situation is even trickier. In Tarble’s Case, decided in 1872, the Supreme Court held that state courts lack the authority to issue habeas relief to those held in federal custody. Although Tarble’s Case has long been read as imposing constitutional limits on state courts’ authority to grant habeas relief, Vázquez and Vladeck think it is better understood as a statutory restriction on state courts. As long as the lower federal courts exist, and Congress has granted them the authority to engage in post-conviction habeas review of federal convictions, then state courts lack the power to grant habeas relief to federal prisoners. But Vázquez and Vladeck conclude that if Congress were to abolish the lower federal courts, the state courts would be authorized — indeed, constitutionally obligated — to grant habeas relief to federal prisoners as well, at least on claims like the one at issue in Montgomery.

In short, Vázquez and Vladeck conclude that Montgomery dramatically upended the long-standing assumption that collateral review is a matter of legislative grace rather than constitutional compulsion. As they admit, however, the Supreme Court may not have fully thought through the implications of its own decision.

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Legal scholarship highlight: Justice Scalia’s textualist legacy

Legal scholarship highlight: Justice Scalia’s textualist legacyJonathan R. Siegel is Professor of Law at George Washington University Law School. The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed […]

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Legal scholarship highlight: Justice Scalia’s textualist legacy

Jonathan R. Siegel is Professor of Law at George Washington University Law School.

The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed that when a court interprets a statute, its job is to implement “legislative intent.” Courts often paid more attention to statutory purpose and legislative history than to statutory text.

Scalia rebelled against these interpretive methods. He believed that when a court interprets a statute, the court’s job is to read the statutory text and do what it says.  Even if what it says is stupid. Even if what it says is not what anybody intended. The text of a statute, Scalia believed, is the law.

In a recent article, I chronicle and assess Scalia’s campaign for “textualism.” In the end, I suggest, Scalia both won and lost. He had tremendous influence over interpretive methodology. But he never convinced the Supreme Court, or federal judges generally, to adopt his textualist ideal that “the text is the law.” In some cases, federal courts still depart from statutory text in order to implement legislative intent or statutory purpose.

The way things used to be

In the period preceding Scalia’s arrival on the Supreme Court, the court used interpretive methods that are almost unimaginable today. It often gave itself up to wholly unrestrained reliance on extratextual considerations, especially legislative history. For example, in 1978, in Monell v. Department of Social Services of City of New York, the court considered whether a municipality is a “person” subject to suit under 42 U.S.C. § 1983. With barely a glance at the statutory text, the court launched into an analysis of legislative history that was so long it had to begin with an overview. The Court devoted 18 pages to recounting congressional debates blow by blow and concluded that Congress “intend[ed]” municipalities to be covered. In Citizens to Preserve Overton Park, Inc. v. Volpe, in 1971, the court made the now-incredible remark that because the legislative history of the statutes at issue was ambiguous, the court would have to look to the statutes themselves to find the legislative intent. Truly, as Scalia later complained, the legal culture was such that “lawyers routinely … ma[d]e no distinction between words in the text of a statute and words in its legislative history.”

Enter Justice Scalia

Scalia started his protests against these interpretive methods modestly. In the 1989 case Blanchard v. Bergeron, he challenged the Supreme Court’s reliance on legislative history, but primarily on the ground that legislative reports are an unreliable guide to legislative intent. He said that committee reports had become “increasingly unreliable evidence of what the voting Members of Congress actually had in mind,” thereby implicitly accepting that a court should care what members of Congress had in mind.

Scalia’s opinions evolved over the next decade and took on a sharper tone. In 1993, in Conroy v. Aniskoff, he said, “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Scalia crystalized his thoughts into a set of lectures delivered at Princeton in 1995, which later appeared in book form. He complained particularly about reliance on legislative history, but that was merely one detail in the bigger picture. The bigger picture was that “[t]he text is the law, and it is the text that must be observed.”

Scalia employed this textualist philosophy from that point forward. Legislative history always remained a particular sticking point. Even when Scalia joined an opinion, he made a point of refusing to join portions that relied on legislative history — a practice he continued over decades. But more generally, he argued that the goal of statutory interpretation is to implement the meaning of statutory text, not the intent behind the text.

Assessing Scalia’s influence

Scalia’s textualist campaign was tremendously influential. He changed the way courts interpret statutes. His influence is visible in virtually every Supreme Court opinion interpreting statutes today. Consider, for example, the 2010 case Bilski v. Kappos, which tested whether a business method can constitute a patentable “process.” For over a century, courts applied patent law with a rich awareness of the history, policies and background understandings of the patent system, which frequently caused courts to gloss, strain and even depart from the patent statute’s text. In Bilski, however, the Supreme Court simply consulted “dictionary definitions,” “common usage” and the interpretive canon against statutory redundancy. Gone were appeals to history, policy and background understandings. Cases like Bilski are far more common today than cases like Monell or Overton Park.

With regard to legislative history, Scalia’s most particular concern, the Supreme Court still consults it, but in a somewhat apologetic way. Often it adds a disclaimer such as “for those who consider legislative history relevant.” The practice of putting legislative history on a par with statutory text has been repudiated.

Nonetheless, the Supreme Court, and federal courts generally, have never fully accepted Scalia’s textualist ideal that “the text is the law.” Justice Elena Kagan, in a lecture at Harvard Law School, recently said that thanks to Scalia, “we are all textualists now.” Kagan, however, is correct only in a relative sense. We are all textualists now compared with the 1960s and 1970s. It is now generally agreed that when interpreting a statute, a court should start by reading the statutory text and should not lightly depart from the text. But we are not all textualists by Scalia’s definition. There is not general agreement that “the text is the law.” Recent cases show that courts are not committed to following statutory text no matter what.

For example, two years ago in Yates v. United States, the Supreme Court determined that a fish is not a “tangible object” within the meaning of a statutory prohibition against impeding a federal investigation by destroying or concealing “any record, document, or tangible object.” The four-justice plurality observed that the statute in question, the Sarbanes-Oxley Act, was passed primarily to combat financial fraud and held that it did not apply to the case, far removed from its purpose, of a ship’s captain who ordered fish thrown overboard to thwart an investigation into catching undersized fish.

Similarly, in the monumental 2015 case of King v. Burwell, the Supreme Court held that a health-care exchange created by the federal government was an “Exchange established by the State” within the meaning of a provision of the Affordable Care Act that provided subsidies only for health insurance purchased on such an exchange. The statutory text suggested that subsidies were not available in states that had not set up their own health care exchanges, but the court gave the statute a broader reading in light of the essential role that the subsidies played in the overall statutory scheme.

Lower courts also depart from statutory text when the occasion demands. For example, from 2005 to 2008, numerous courts of appeals held (over one fiery textualist dissent) that a provision of the Class Action Fairness Act that allowed certain appeals to be taken “not less than 7 days after” entry of a district court’s order really required such appeals to be taken not more than 7 days after entry of the order. The statutory text was so obviously a drafting error (appeals are always subject to a time limit, not a waiting period) that the courts read it to mean the opposite of what it said.

These and similar cases show that courts do not really believe that “the text is the law” — at least, not always. Scalia’s Supreme Court colleagues did not share his devotion to his textualist ideal. It seems that the newest justice, Justice Neil Gorsuch, may step into Scalia’s textualist role, but the textualist ideal still remains a minority viewpoint.

Why do courts reject the textualist ideal? One reason is that legislatures act generally and in advance, whereas courts encounter statutes at the moment of their application to particular facts. This institutional structure guarantees that legislatures will fail to anticipate everything that statutory text will do and will pass statutes that require courts to deviate from the textualist ideal to reach sound results.

From an advocate’s perspective, the moral is that one must always deploy both textual and extratextual arguments in statutory cases. Advocates should start with the text, no doubt. But they should remember that most judges do not fully embrace the textualist ideal and they should also include extratextual arguments.

Scalia did an important service in recalling attention to the importance of text in statutory interpretation. But other considerations can be important too. There will always be room for debate as to how much judicial gloss on statutory text is permitted, but following statutory text no matter what is not the answer.

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