The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)

In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”

See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

"The Case Against Referendums: From Greece to California, They Always End Up Undermining Democracy."

David Bell in TNR:

Modern states are far too large and complex for direct democracy. Since it would be hugely impractical for the people, as a whole, to decide on everything from the size of foreign aid budgets to new environmental regulations, they delegate the business of government to elected representatives....

[I]n practice bodies of elected representatives so often seem to devolve into corrupt, complacent and long-lasting oligarchies. Anger at the shenanigans of the political class has helped keep the old suspicions alive right down to the present day, and has led, in democracies across the world, to countless institutional schemes designed to keep elected representatives in check: “imperative mandates” (detailed orders for how to vote in parliament, drawn up and approved by constituents); term limits; making the job part-time; judicial oversight; etc. The single most popular such scheme, however, has been the referendum....

[But referendums] take relatively technical issues away from legislators who have the time and expertise to deal with them, and give them to voters who do not....

[Referendums] tie the hands of legislators in potentially destructive ways....

[R]eferendums tarnish the legitimacy of legislators by subjecting their work to direct popular veto, and therefore casting it as a less genuine expression of popular sovereignty—despite the fact that the routine functioning of a democratic constitution is the most important expression of this sovereignty.

By the way, the U.S. Constitution prescribes the specific method for legislating and amending the Constitution, and that excludes the referendum as a check on Congress, but there is also an argument that the state-level referendums violate the U.S. Constitution. In 1912, the U.S. Supreme Court announced that it was not the proper role of the courts to give an answer to that particular question of law, and referendums have continued ever since. What a missed opportunity!

"[Ron] Paul’s experience in science and medicine only reinforced his belief that life begins at conception..."

"... and he believes it would be inconsistent for him to champion personal liberty and a free society if he didn’t also advocate respecting the God-given right to life—for those born and unborn. After being forced to witness an abortion being performed during his time in medical school, he knew from that moment on that his practice would focus on protecting life.  And during his years in medicine, never once did he find an abortion necessary to save the life of a pregnant woman."

From a page on Ron Paul's website that I got to from a link in a Matthew Yglesias post titled "Ron Paul's Strange Freedom." Yglesias says:

[I]f it weren’t for his loud fanbase of self-proclaimed libertarians you wouldn’t really think [Ron Paul is] a libertarian. He’s loudly trumpeting his plan to impose criminal penalties on women who terminate their pregnancies...

Would Ron Paul punish women who get abortions as criminals? His website says he "will continue to fight for the same pro-life solutions he has upheld in Congress, including..."

* Immediately saving lives by effectively repealing Roe v. Wade and preventing activist judges from interfering with state decisions on life by removing abortion from federal court jurisdiction through legislation modeled after his “We the People Act.”

* Defining life as beginning at conception by passing a “Sanctity of Life Act.”

Does either of those proposals represent a plan — "loudly trumpet[ed]" or not — to prosecute women who have abortions? It seems to me that both of these bills are about cutting federal jurisdiction, which would leave the matter of abortion to state courts. Those courts would still be bound by Supreme Court precedent, by the way, although they'd be left to their own devices about following that precedent.

Yglesias makes some good points about the less-than-fully-libertarian quality of Ron Paul's libertarianism. He shouldn't shoot his credibility to hell with statements like "He’s loudly trumpeting his plan to impose criminal penalties on women who terminate their pregnancies."

UPDATE: Yglesias responds to this post:

Ann Althouse chooses for some reason to dispute that Ron “respecting the God-given right to life—for those born and unborn” Paul wants to ban abortion. 

No. I dispute that he has "loudly trumpet[ed a] plan to impose criminal penalties" on women who have abortions. Those are your words, Matt, and it is quite dishonest to change the language as you embark on your attempt to discredit me.

Since she’s apparently incapable of reading between the lines of such proposals as “Defining life as beginning at conception by passing a Sanctity of Life Act’” she might be interesting [sic] in some other quotations from Congressman Paul such as....

Well, the fact is, Matt, I really am interesting. I'm so interesting that you ought to pay attention to the precise words that I use in disputing you. Pay attention to the text before you embark on your flights of interpretation that you gratuitously insult me for supposedly lacking the capacity to perform. Pay attention to my text and to your own text (which needs editing). You ought to learn to read and be honest about what you have read.

Yglesias goes on to quote something Ron Paul said about the fetus being a person. I'm well aware, as my post clearly shows, that Paul believes the fetus is a person who deserves rights. The issue, however is whether he has "loudly trumpet[ed a] plan to impose criminal penalties" on women who have abortions. He has not done that.

Ron Paul's proposals are about diverting the matter to the state courts, as I clearly describe in my post. Now, if you want to say that voters who care about preserving abortion rights should not trust Ron Paul, then I agree with you. But you should agree with me that he most certainly did not "loudly trumpet[ a] plan to impose criminal penalties." Why can't you just fix your misstatement? Why this pointless pigheadedness? You're doing yourself no favors, Matt, and insulting my intelligence — "she’s apparently incapable of reading between the lines" — is — as they say — incivil.

Gingrich gives his opponents a quote to gasp about: "There is no Supreme Court in the American Constitution."

Just a few days ago, I was talking about a certain type of clever remark:

A witty, engaging speaker will say something surprising and counterintuitive, but then flesh it out or add one more point, and then it clicks. Of course, if you have opponents, you've got to anticipate what they'll do with the little slice of what you said that seems head-slappingly idiotic. So it may not be so smart to be smart like that. 

The context was David Plouffe saying "people won’t vote based on the unemployment rate." And now, here comes Newt Gingrich with an even juicier example of the seemingly stupid line that wakes up the audience and draws them in to hear the whole context but that also gives opponents an easy way to use the remark to make you look like an idiot.

Here's the quote, in it's full context (transcribed in a post by Ian Millhiser at Think Progress):

In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.

It's obvious to me — as a law professor who has studied and taught Article III of the Constitution for 25 years — that Gingrich is not denying that the Constitution provides for a Supreme Court. He's denying the supremacy of that Court over the other branches. He's stressing the checks on the judicial branch, which include Congress's power to make "Exceptions and... Regulations" to the Supreme Court's jurisdiction, and the idea that the Supreme Court is not the sole voice in the interpretation of constitutional law. This is routine stuff in a Conlaw I class. It's what we conventionally talk about along with Marbury v. Madison. It's not the slightest bit edgy, believe me.

Watch the video at the Think Progress link. You can hear the stress on "Supreme" in "There is no Supreme Court in the American Constitution." He knows there's a Supreme Court. It's just not, in fact, supreme over everything. The Supreme Court can strike down statutes and order members of the Executive branch around to a certain extent, but it is also subject to jurisdiction cutbacks, new appointments, impeachment, and constitutional amendments. And the question of what the Constitution really means survives independently of the case law. We are free to argue that the Court got it wrong, to try to get cases overruled, and so forth. And there are many places where the Court hasn't spoken yet or may never speak, in which case there are important responsibilities elsewhere in government for other individuals to say what the Constitution means.

Justices Alito, Scalia, Thomas and the Chief would like you to know that they do care about the privacy of your backyard.

But not when the decisions comes to them on review of a decision by a state intermediate appellate court. I mean, you've got your backyard privacy and they've got their Rule 10. The New Jersey Supreme Court didn't want to talk about it, so they don't want to talk about it.

Today, all 9 Justices embrace a clear rule over a more nuanced and litigation-breeding interpretation.

Now, there's a whole day of Civil Procedure class notes down the drain!

In Hertz Corp. v. Friend (PDF), the Supreme Court unanimously adopted the "nerve center" test as the meaning of a corporation's "principal place of business" for the purpose of federal court diversity jurisdiction (i.e., cases that can be brought in federal court not because they arise under federal law, but because they are between citizens from different states):

We ... recognize that the use of a "nerve center" test may in some cases produce results that seem to cut against the basic rationale for 28 U. S. C. §1332.... For example, if the bulk of a company's business activities visible to the public take place in New Jersey, while its top officers direct those activities just across the river in New York, the "principal place of business" is New York. One could argue that members of the public in New Jersey would be less likely to be prejudiced against the corporation than persons in New York — yet the corporation will still be entitled to remove a New Jersey state case to federal court....

We understand that such seeming anomalies will arise. However, in view of the necessity of having a clearer rule, we must accept them. Accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system.

That "One could argue" business has fueled endless hours of Civil Procedure discussions. But no more! Thanks for simplifying things— even if it means that diversity jurisdiction makes even less sense than ever. Which is a good thing, right?

Justice Sonia Sotomayor says: "the problem with every test is that you can find an exception that makes the application ridiculous."

Doesn't that just make you want to think of a rule that does not require an exception to avoid ridiculousness? Then aren't you intrigued by the paradox that you will have just come up with an exception to her rule (about the need for exceptions to avoid ridiculousness), and that will simultaneously support and undercut her rule?

Or you can just think about whether there should be a clear test for determining a corporation's "principal place of business" for the purposes of §1332 diversity jurisdiction or whether it would be better to use a multi-factor approach?

Chemerinsky's idea of "Enhancing Government."

Jonathan Adler points to Jon O. McGinnis's review of Erwin Chemerinsky's new book "Enhancing Government: Federalism for the 21st Century. The book sketches out the liberal position on the various federalism issues, and this is the position that — McGinnis aptly asserts — you can expect Obama-appointed Supreme Court Justices to take.

Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate. What is left to the states is what Congress deigns to leave to the states. On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage — the civil plaintiffs and criminal defendants who assert federal rights — their preference whether to litigate in state or federal court. And Chemerinsky would make it hard for federal law to preempt state law, and this would preserve the regulation of business at dual levels of government, federal and state.

If voters think about Supreme Court appointments at all, they usually focus on the scope of individual constitutional rights (especially abortion). I wish people would pay attention to these federalism issues. As McGinnis writes, the liberal position on federalism is very widespread and elaborately worked out in the legal academy. The Burger and Rehnquist Courts were somewhat successful in keeping this thinking from migrating into the case law. Chemerinsky's idea of federalism is not simply expanding federal power at the expense of the states. It's more complicated (and more policy-oriented in its complication). Even though this approach allows Congress to regulate anything, it preserves state regulation where Congress has not expressly preempted it, and it preserves the power of state courts when a litigant with a federal law right prefers state court. So the liberal idea of "Enhancing Government" is about expansive federal regulatory power combined with enthusiasm for regulating business and enforcing federal rights.

Maybe you like that idea. I'm just saying: Think about it.

Danforth v. Minnesota — a correction.

I've made a correction to this old post about Danforth v. Minnesota, the case about the retroactivity of federal constitutional law doctrine in state courts. In the post, I quote a passage that is from the state's brief, and I misidentified it as coming from the state court. The court sided with the state, and, for reasons I explain in that post and this later one about the oral argument in the U.S. Supreme Court, I think the state court got it wrong. But the court did not write the passage I found so interesting (though "a jumble" and "poorly written").

When the Supreme Court announces a "new rule" of constitutional law, does that mean the right it articulates did not exist in the past?

Yesterday, we were talking about Danforth v. Minnesota, and now the transcript of the oral argument is available (PDF). Let's dig in.

This is a case about whether the state courts must follow the doctrine that has in the past applied to federal courts that are considering whether to grant habeas corpus relief to persons who are in custody after conviction in state court. The problem is that the conviction followed a state court proceeding that complied with the federal constitutional law that the Supreme Court had articulated at the time. The Supreme Court said, in Teague v. Lane, that the federal court, on habeas, should not require the state court to redo its work according to a higher standard that was only announced later. The question in Danforth is whether the state courts can follow their own procedure and require new trials that satisfy the higher standard. Danforth was convicted of sexually abusing a child whose testimony was presented on videotape, but the Supreme Court, after his conviction became final, determined that the 6th Amendment requires live testimony. Federal courts, following Teague, won't order the new trial on habeas, but why shouldn't the state courts have the autonomy to establish their own law about whether there will be a retrial in this situation?

There are two significant matters here that ought to appeal to a conservative Justice.

First, originalism. If you are an originalist, there should be no coherent idea that rights are "new." Rights are what they are. The Court may have newly discovered those rights and failed to notice them in the past. But a case announcing a "new rule of constitutional law" should not mean that the right came into being at that point. If you think that, you believe the Constitution grows and evolves. That is the very idea that Justice Scalia mocks whenever he gives a speech, but here's the attitude he took at oral argument:

Now, you can argue, and there are many originalists who would agree with you, that there shouldn't be such a thing as a new rule, but once you've -- once you've agreed that there can be new rules, if this Court says this is a new rule, we acknowledge it wasn't the rule before, but it's new, it will not have retroactive effect, it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.

Once you've -- once you've agreed ... Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right. Is he playing dumb? Why? This should fuel the critics who say he's just hostile to the rights of the criminally accused.

Justice Stevens calls him on it:

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be -- we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia's position is we have all that power in the world.

(Laughter.)

JUSTICE SCALIA: My position is we have asserted all that power in the world.

(Laughter.)

Isn't it nice that everyone had a laugh? I can see laughing if you enjoy seeing Scalia openly displaying hypocrisy and don't care that a man is in prison who might have gone free if he'd had the chance to cross-examine the witness against him. I don't think it's funny at all.

Second, federalism. A conservative justice should care about the autonomous operation of the state court system, subject to the demands of federal law. Teague expressed the deference federal judges owe to the state courts who performed their obligation to enforce federal law well enough and therefore deserve not to have to redo their work according to constitutional law standards they didn't know existed.

Perhaps Teague should be extended to prevent the state courts from offering a broader remedy for the violation of a newly discovered right, but why would that be? Why can't the state courts devise their own remedial approach? A conservative justice should see the need to articulate a reason for turning what was deference to state courts into a limitation on state courts. Yet Chief Justice Roberts seemed eager to conflate remedies and rights. He asserted that the nonretroactivity of a right is part of the definition of the right, and then said that retroactivity "at least" a matter of federal common law, "and doesn't Federal common law preempt State common law?"

Now, that is a question, not an assertion, so perhaps he realizes — I certainly hope he realizes — that there would still be a question of the scope of that federal common law.

Teague applied to federal courts on habeas deciding whether to upset a conviction that had become final. If you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism.

UPDATE: Orin Kerr comments on this post:

In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be.

I don't think you need to disagree with me. You can say that the right was always there. It existed at the time of the trial, unbeknowst to the state court, and a federal court should not not enforce it by upsetting a decision that became final before the right was discovered and proclaimed. You don't have to abandon originalism to accept Teague.

That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method.

I don't think he wants to sign on to the notion of a living constitution.

On the other hand, I agree with Ann about the federalism point.

Thanks!

Can state courts choose to apply new rules of federal constitutional law retroactively?

The Supreme Court hears oral argument today in Danforth v. Minnesota, which is a fascinating federalism case. Under Teague v. Lane, federal courts cannot grant state prisoners a writ of habeas corpus when the attack on the work of the state court is based on a rule of constitutional law that was announced after the conviction became final. (There are 2 exceptions to that doctrine that don't matter here.) The question in Danforth is whether state courts can grant prisoners relief based on the new rules that the federal court can't apply.

The Minnesota Supreme Court said no, in reasoning that I think is wrong. From the opinion (which I don't have a link for). [CORRECTION: This passage is not from the opinion but from the brief for the state of Minnesota (PDF). Here's the state court's opinion (PDF).]

If the Griffith-Teague retroactivity doctrine did not apply in state courts, supremacy and uniformity problems would be magnified because federal review of state post-conviction proceedings – in both habeas proceedings and direct review by this Court – would be unavailable for decisions that do not follow Teague. The lack of federal review deprives the state decision of constitutional legitimacy. Even if not Teague barred, this Court’s review would ratify state created federal constitutional disparity into its decisions by reviewing the claims of similarly situated collateral review defendants according to different constitutional standards.

The Griffith-Teague doctrine also vindicates federal constitutional values of finality and federalism. Finality interests identified in Teague are not unique to federal habeas review. They are present and protected by Teague in the context of federal collateral review of federal convictions as well as in review by this Court of federal issues arising in state collateral proceedings. Teague also serves the comity interest of validating the reasonable interpretation of existing federal constitutional rules made by state courts – an interest not limited to the federal habeas context. Whether a federal or state judge asserts a new federal constitutional rule to invalidate a reasonable state court interpretation of a federal constitutional rule the state finality interest is subverted.

Against strong supremacy, judicial integrity, finality, and federalism values, Petitioner asserts a state interest in selectively creating enhanced or preferred federal constitutional rights that apply only to citizens of that state. This is not a legitimate state interest. If a state wishes to create preferred rights for its citizens, respect for the political rights of the citizens of the state require a state do so under its own state law subject to the state legal and political constraints attendant to state law decisions. Anything less simply cloaks state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens.

These may be reasons why a state court might want to adopt nonretroactivity as a matter of state law, but that doesn't explain why federal law requires state courts to avoid applying the current rules of federal constitutional law.

What the federal courts can do is governed by the federal habeas statutes, which the U.S. Supreme Court interpreted in Teague. Everything the Court said about comity and finality in Teague related to the way federal court should treat state courts (which conducted the original trial before the new rule was announced). Why should this limit on federal habeas jurisdiction carry over to the state courts if the state, under its own law, chooses to revisit cases that have become final but were decided under the old rule of constitutional law?

Danforth was tried for sexual abuse of a child whose testimony was presented on videotape, something the Supreme Court, in Crawford v. Washington, said violates the Sixth Amendment right to confront the witnesses against you. But since Crawford was decided after Danforth's conviction became final, he can't ask a federal court, on habeas, to give him a new trial in which he has the opportunity to confront the witness. Should the state therefore be prevented from offering him that relief? I think not.

The Minnesota Supreme Court's opinion The brief for the state is a bit of a jumble of ideas, and it is poorly written. (How do you ratify disparity into something?) But there is some sense to the concern that a state court will "cloak[] state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens."

The idea is that state judges who have a broader conception of rights than the citizens of the state will decide cases the way they like and make it seem that federal law requires it. But federal law does require live testimony in the situation that Danforth encountered. It is simply the case that under federal jurisdiction law, the federal courts won't force the state courts to redo the trial. If the state courts were to apply the federal right anyway, they would be applying a real federal right and following state law jurisdiction rules. If the citizens of the state don't like that, they can change that jurisdiction law.

There are some more complicated angles to this, and I will write more after the oral argument becomes available.

ADDED: Scotusblog reports on the oral argument:

The Court... debated whether Teague was a decision about “rights” or only about “remedies,” whether it was both because a remedy is part of the “substance” of the right, whether it was a constitutionally grounded ruling or merely an interpretation of federal habeas statutes, whether it involved no more than a gesture of respect and “comity” toward state courts or was a directive that the states had no choice but to follow. At the end of the one-hour hearing, there was no visible consensus on what Teague now means, or on the legal authority that the Court had to make the ruling.

I'll have more when I've read the transcript of the argument. This case concerns something I've been writing about since the mid-80s, and, though the Minnesota Supreme Court says things very similar to what I've been teaching in my Federal Courts class for more than 20 years, I disagree adamantly with its conclusion. I realize many of my readers may think this is obscure and overcomplicated, but to me, it is perhaps the most interesting case I've seen in 20 years.

"Obama knew he should vote for Roberts' confirmation, but voted against for purely political reasons."

Beldar reads the Washington Post and paraphrases.

Elsewhere on BeldarBlog -- where baiting Senators is a way of life -- Beldar is begging Senator Kerry to sue him:

I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

I love the part about diversity jurisdiction. We need more blogging about jurisdiction....

A senator grovels.

Are you pleased?

I hate seeing people publicly humiliated for the sexual things they do in private. But the government is criminally prosecuting a woman, Deborah Jeane Palfrey, for what it says was a prostitution ring. These are federal charges, and the senator, David Vitter, has some responsibility for the laws that make this prosecution possible.

Vitter situates his misdeed in the realm of religion and private morality:

"This was a very serious sin in my past for which I am, of course, completely responsible"...

"Several years ago, I asked for and received forgiveness from God and my wife in confession and marriage counseling... Out of respect for my family, I will keep my discussion of the matter there -- with God and them. But I certainly offer my deep and sincere apologies to all I have disappointed and let down in any way."

Oh, well, if God has forgiven him...

Palfrey can't say God has forgiven her and walk free. In fact, Vitter's statement hurts Palfrey because it strongly implies that Palfrey was doing what she's accused of. Vitter's confession -- intended to move us to mercy -- links him to criminal activity, but only she is facing criminal punishment.

Shouldn't the expiation of Vitter's sins wait until he has introduced a bill that would create a federal right to engage in the business of prostitution? It's not a matter to be resolved within the realm of church and family as long as Palfrey is being prosecuted.

UPDATE: James Taranto links here and asks:

How would advocating the legalization of prostitution expiate Vitter's sins? Prostitution is illegal because it is wrong, not the other way around. The reason we have laws at all is not so that "good" people can impose their will on "bad" people, but because everyone has the capacity to do bad things. Thus it's not surprising that moralists sometimes turn out to be hypocrites. They are moralists because they are closely acquainted with the temptation to do wrong.

Taranto isn't reading me carefully. I'm not talking about what Vitter needs to do to expiate his sins. I'm talking about what Vitter needs to do to make it only an issue of sin. My point is -- quite clearly -- that as long as Palfrey is incapable of treating this as a matter between herself and God, it is not morally logical for Vitter to claim that capacity for himself. He must first take whatever action he can to put Palfrey in the same position he wants for himself. Vitter is a member of Congress, and Palfrey is being prosecuted under federal law. He cannot morally turn away from her plight while he holds power.

ANOTHER UPDATE: James Taranto responds to my response:

Althouse's original words were: "Shouldn't the expiation of Vitter's sins wait until he has introduced a bill that would create a federal right to engage in the business of prostitution?" It would take a careful reader indeed to conclude that Althouse is not referring to "what Vitter needs to do to expiate his sins."

Indeed, we expect careful reading here on Althouse. When you see a concise and puzzling sentence, remember to pause and think deeply -- especially if you want to write about it!

Anyway, the argument is illogical on several levels. For one, the crime Vitter is thought to have committed, patronizing a prostitute, is different from the crimes with which Palfrey is charged: racketeering and conspiracy. (Prostitution is under state and local jurisdiction.) Does Althouse think Vitter should introduce legislation to decriminalize racketeering and conspiracy?

No, I think he should -- as I wrote -- introduce a bill that would create a federal right to engage in the business of prostitution! Congress has the power to do that under the Commerce Clause, and it would preempt the state law that currently criminalizes prostitution. The conspiracy and racketeering laws would remain intact, but the state law they draw on would no longer include a crime of prostitution. See? Nothing permanently puts prostitution "under state and local jurisdiction." It can be federalized.

Further, the idea that Vitter is getting off easy seems to have it backward. The proper comparison here would be not to Palfrey but to others situated similarly to Vitter -- i.e., those who may be incriminated by Palfrey's phone records. Among this group, Vitter is being singled out for humiliating attention owing to his status as an elected official. However much Vitter might like to treat this as a matter "between himself and God," it is also a matter between the news media and Larry Flynt and the voters of Louisiana and political junkies and voyeurs all over the world.

I didn't say Vitter "is getting off easy." In fact, I feel sorry for him. I am simply objecting to his announcement that it's a private matter in the realm of family and religion. And I don't see why Taranto thinks he can simply announce what the "proper comparison" is. Palfrey faces prison. It is a very serious matter for the government to take away a person's freedom. Why should Vitter be able to say it's no concern of his? He was part of the same illegal behavior that she is being prosecuted for. He holds a position of legislative power. I'm saying that if he wants to say that the wrong he did is something to be dealt with exclusively as a private matter, he's morally obligated to use the power he has to make prostitution a private matter for her too.

I realize the media are slavering over this too. I'm not saying that's right. But it doesn't absolve him of his wrongs. As for the comparison to other clients who have less to lose from exposure -- it is always the case that getting accused of wrongdoing has an impact on your life that depends on the particularities of your life.

I've read the opinion in the 6th Circuit NSA case.

And updated my original post -- at great length.

ADDED: My analysis of standing is at that link, but we're talking about it in the comments here. Marty Lederman was nice enough to comment and say he appreciated my analysis, so let's look at what he wrote about the case. He says that the standing analysis is "complicated -- real FedCourts inside baseball" and opines that ordinary people are unlikely to sit through the explanation.

This really is a problem with fedcourts doctrine. You have strange, alienating doctrine that prevents courts from doing what it seems that courts are for: deciding the case on the merits. Judges act as though they are carrying out some higher calling when they decline to act, and maybe they are, but if what they are doing is incomprehensible to people, they are likely to draw their conclusions about the quality of the case based on the outcome.

Lederman says that the Supreme Court's standing doctrine is "a mess" -- but that's mainly true because the Court is composed of some very different individuals, some of whom would never have adopted the constitutionalized 3-part injury-in-fact test in the first place and because the test must be applied in complex and varied fact settings, which has given the Court's swing voters room to affect outcomes in a pragmatic fashion. The mess could be cleaned up pretty easily by replacing a justice or two. Which way do you want it cleaned up? Would you rather have it kept a mess than cleaned up the way you don't like? If yes, then you should understand why we've got the mess.

Marty observes that whatever you might say about the injury to these plaintiffs, it can at least be said that the program they challenge is injuring someone, and it's a real, not a hypothetical controversy. The constitutional aspect of standing doctrine is a gloss on the Article III definition of "the Judicial Power" in terms of "cases" and "controversies," and Marty seems inclined to revive the way the Warren Court used to talk about standing doctrine. We definitely have a real controversy, so why stress the concrete and particularized injury to these plaintiffs? He blames the defendants for withholding the information about who the program has actually targeted: "What constitutional value is served by allowing that type of uncertainty -- wholly a function of the government's own refusal to identify the victims -- to be grounds for avoiding a resolution on the merits?"

I think the answer, for those who support the current standing doctrine, is that standing is required across the board, and you don't get to create exceptions to the requirements in individual instances where the case seems justified. Standing is a matter of the constitutional limit on judicial power, so nothing that the parties do can enlarge it. Even if the Executive Branch wanted the federal court to decide a case beyond the Article III judicial power they would have to decline. If Congress passed a statute granting jurisdiction beyond the judicial power, it would be unconstitutional. These constitutional limits on the courts' power are just as important as the limits on the executive power that you wish they would address.

That's the strong view of standing -- which goes along with a strict view of separation of powers. Not all the justices support the strong view all the time. I note that in Laidlaw, the case that Judge Gilmore relied on, Justice Scalia was forced to rail about this sort of thing in dissent (joined only by Justice Thomas).

And let me flag this new post by Patterico, which shows that Glenn Greenwald was wrong when he asserted that only the dissenting judge in the 6th Circuit case had anything to say about the substantive merits of the plaintiffs' claims. In fact, Judge Batchelder wrote that the plaintiffs failed to state a claim under Title III and FISA. As quoted by Patterico (who adds emphasis):

It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.

Patterico is right, but I'm not impressed by the way Batchelder disposed of these two claims on the merits. With respect to the plaintiffs' constitutional claims, she said that the plaintiffs' lacked standing. But the same lack of standing would apply to the statutory claims and should have precluded her from reaching the merits. And Batchelder ought to have wanted to coordinate with Gibbons on a single opinion. It looks rather obvious to me that Batchelder wanted to have it both ways and be strict about standing and still talk about the merits. That doesn't add up. And Gibbons did well to refuse to join it.

I can't stand Greenwald's posturing about how all the judges who have reached the merits have found the program illegal. It's not surprising that the judges who are lax about standing also lean toward restricting the President's power in national security. These are both liberal positions. The judges who stop at the level of standing are the judges who would be most likely to find the program legal. So Glenn's point doesn't impress me. Patterico shows that Glenn is wrong. But ironically, Batchelder would look a whole lot better if Glenn were right.

Yale law students sue over "the scummiest kind of sexually offensive tripe" at AutoAdmit.

WSJ Law Blog has the story:

In the latest chapter of the AutoAdmit.com scandal, two female Yale Law School students have sued Anthony Ciolli, the Web site’s former “chief educational director,” and more than two dozen others who allegedly used pseudonyms and posted the students’ photos as well as defamatory and threatening remarks about them on the online law-school discussion forum....

The law students aren’t named in the suit — filed yesterday in U.S. District Court in Connecticut — which claims the defendants violated copyright infringement by posting photos of one of the women without her permission, falsely posing as the women in posts on the site, and engaging in “unreasonable publicity given to another’s life; publicity that places another in a false light before the public; intentional infliction of emotional distress; negligent infliction of emotional distress; and defamation.”

The complaint asks for judgment against the defendants for unspecified damages as well as punitive damages in the amount of $245,400. Besides Ciolli, named defendants include individuals with pseudonyms such as “Pauliewalnuts” and “The Ayatollah of Rock-n-Rollah.”

“It’s bringing the right to protect yourself against offensive words and images into the 21st century,” said David N. Rosen, a New Haven, Conn.-based attorney for the students and a senior research scholar in law at Yale Law to the Law Blog in an interview. “This is the scummiest kind of sexually offensive tripe,” he said of the postings about the women on AutoAdmit.

So this is the 21st century? Where courts award punitive damages for offensive words and pictures? Isn't "the scummiest kind of sexually offensive tripe" exactly what we always used to say people had to put up with in a free country? Man, that was so 20th century!

ADDED: Over at AutoAdmit, they're trashing the complaint.

MORE: Glenn Reynolds: "Stuff that offends dumb hicks in the heartland is constitutionally protected. Stuff that offends Yale Law Students must be stamped out!" Yeah, really.

And in the comments Bruce Hayden raises a damned good question about the copyright claim (which is the whole basis for federal subject matter jurisdiction in the complaint (PDF)): "Copyright protects original expression. Thus, the photographer would be the copyright owner, not the subject of the photographs." I'm not a copyright expert, and I'm not writing this as anyone's lawyer -- I'm retired from the practice of law -- but it looks to me as though the copyright claim is completely frivolous, and all the other claims are state law claims. Subject matter jurisdiction is based only on federal question jurisdiction, not diversity of citizenship, so all those state law claims are in federal court because they are supplemental to the federal claim. Under § 1367(c), then, when the copyright claim is tossed out, the whole case should be dismissed. Unless our fearless lawyer refiles in state court, we'll never get to hash out all the interesting free speech issues. But then, this case should never have been filed. So, much as I'd like to see a strong precedent protecting offensive speech, it will be good to see this nipped in the bud.

AND: The complaint does assert that one of the plaintiffs owns the copyright in the photographs that are the basis of the copyright claims. It appears that the plaintiff acquired the copyrights in preparation for the lawsuit, and I'll leave it to copyright experts to say more about that, but the question I want to raise is: If the plaintiff(s) did not own the copyrights at the same time as the other incidents alleged in the complaint, how can the copyright infringement be part of the same constitutional case as all the state law tort claims under §1367(a)? That is, how can the federal court have jurisdiction over anything but the copyright claims?

ONE MORE THING: This post originated as a response to the lawyer's phrase "the scummiest kind of sexually offensive tripe." I want to see "the scummiest kind of sexually offensive tripe" protected. That doesn't mean I support defamation or the revelation of private facts or impersonating someone by name on a website. Those are different matters, and I don't mean to express an opinion as to whether any torts like that are alleged in the complaint. I just want to remind people to keep our free speech bearings. We have lost our way if we've forgotten the importance of protecting speech that is "scummy" and "offensive" and "tripe."

ADDED: Eugene Volokh has a detailed post on many of the fine points of liability.

The jury must be able to "give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence."

Wrote Justice Stevens, as the Supreme Court overturned three death sentences. Chief Justice Roberts writes in dissent: "'Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

I'd like to explain that to you, but I've got to get my notes together for my federal jurisdiction class, where we happen to be studying the very aspect of habeas corpus law that you need to know to understand what Roberts is talking about.

From the Roberts opinion:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however, a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1). When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant -- Penry I -- and anoints that case as the one embodying "clearly established Federal law." In doing so the Court fails to give any meaningful weight to the two pertinent precedents subsequent to Penry -- Graham and Johnson -- even though those cases adopted a more limited view of Penry I than the Court embraces today.

Are you, like me, always clicking on news stories about speeches given by Supreme Court justices...

... and finding that nothing interesting was said? It's so predictable. Sometimes I wonder why I have the Google Alerts I have. Actually, I have one for "Rehnquist" that has malfunctioned and become undeletable -- kind of like life tenure, but for an undying reputation.

My Google Alerts are meant to feed me bloggable nuggets. I have some that reliably turn up good material. But the ones for Supreme Court justices regularly turn up stories like this. I'm not picking on Ruth Bader Ginsburg here. But when justices go out and give speeches at law schools they say anodyne things like: "The benefits of a diverse student population are not theoretical but real."

Oh, yes, maybe Justice Scalia will say something cutting, but it will be the same cut we've heard before.

All the same, I'm not asking them to be more interesting. It's not their job to amuse me. In fact, I think they are required to be that special, judicial kind of boring.

Oh, let me be that special, blogger kind of predictable and reprint this anecdote I tell at the beginning of an article called "Late Night Confessions in the Hart and Wechsler Hotel" (47 Vand. L. Rev. 993 (1994)):

Chief Justice Rehnquist visited my law school last year to deliver a lecture entitled "The Future of Federal Courts." The University Theater filled: overdressed alumni in the front rows, respectful students in the balcony, camouflaged professors here and there. I sat in the middle and hunched over a folded-up sheet of legal paper. I scribbled notes and hoped for some insight into the tangled mass of problems I had made my life's work. Would the Chief Justice perhaps explain the Court's new habeas corpus jurisprudence? I wanted a little accounting for Butler v. McKellar, in which he had denied federal court relief to a man who faced the death penalty after a conviction based on a confession that the Court's own case law would, without question, exclude.

The Chief told some jokes, elaborated on his ties to Wisconsin, and discoursed at length about the workload of the courts. The issues were neutral, administrative, managerial, structural.

"Did he say anything provocative?" asked a colleague who had missed the speech.

"He never got any more provocative than to say he's against diversity."

My friend was shocked. "He's against diversity!?"

"Diversity jurisdiction," I said, realizing she was not a proceduralist.

Maybe in the style of an evolving Constitution, the judicial norms change -- even though they retain that sober feeling. It would have been surprising in 1993 if Rehnquist had opined on racial diversity, and now it seems utterly conventional for Ginsburg to say "The benefits of a diverse student population are not theoretical but real."

First day.

After a seemingly endless winter break, it is finally the first day of what we call the Spring Semester. I'm here before sunrise, so the thick snow out there is looking very blue. But I'm happy -- as symbolized by my taxi-yellow walls -- and eager to get started. The courses are Constitutional Law I and Federal Jurisdiction, and both start -- propitiously -- with Marbury v. Madison.



The poster shows part of a painting by Pierre Bonnard. Would Pierre like the blue and yellow in the photograph combined with his pinkish purple? Consider this:

About those pop culture law school exam fact patterns.

I'm always basing my Civil Procedure II exam on some pop culture thing. CivPro2 here at UW covers jurisdiction and related topics, and I always need a fact pattern -- it doesn't matter what the substantive law is -- that involves a lot of people and places so I can generate some questions about who can join together in a lawsuit and where they can bring the suit and so forth.

In any given year, students could take bets on what pop culture phenomenon will turn up on the exam. If they'd done it this year, it would have been terribly easy to guess. It's "Borat." I changed the name, but basically it's a comedian traveling across the country provoking encounters... and sowing the seeds of lawsuits. It never matters whether the claims are sound or not. (I hope they're not!) I've simply got to create a controversy that has a somewhat complicated mix of people and places.

Does it add some fun to exam-taking, or is it annoying? I hope that, afterwards, it doesn't spoil the fun of the movie for the students. Ack! That was my Civil Procedure exam! I don't mean to do that.

Here's a list of a few things I've used for CivPro2 exams in the past: "The Apprentice," "The Blair Witch Project," "America's Funniest Home Videos," the Beach Boys' legal problems with Eugene Landy, "Supersize Me," "The Real World," the Cat in the Hat balloon at the Macy's Thanksgiving Parade, paparazzi and the deaths of Princess Diana and Sonny Bono, stage diving at the Rave, the U.S. News law school rankings.