Mirror of Justice

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Friday, October 24, 2014

"Measured by the low standards of the desperate, the Supreme Court's 2013-14 term was on the whole a spectacularly good one."

That is the assessment of Michael Stokes Paulsen, writing in the November 2014 issue of First Things -- 2014 Supreme Court Roundup: An Explanation of the Court's Affirmations of Our Right Not to Go Along. (HT: How Appealing)

A few morsels below, but one must read the whole thing not only to assess Paulsen's analysis but also to appreciate his inimitable prose:

The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.


It is a parlous state of affairs when we must depend on the Supreme Court as the bulwark of our most vital natural rights and civil liberties—freedom of religion, freedom of expression and group association, freedom of conscience, the rights to live, to work, and to raise a family. The Court has not always, or even very often, done well on this score. With distressing frequency, it has performed poorly, shortchanging rights plainly written in the Constitution and inventing illegitimate ones nowhere to be found in the text. The Court tends to bow to political pressure and blow with prevailing cultural and popular winds.

Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, arelief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.


A measure of the success of the past year’s term is to contemplate what things would have looked like if the Court had gotten these cases wrong. Religious persons, groups, and businesses could be coerced to support and pay for abortion drugs by administrative fiat. Men and women who wish to counsel pregnant women against abortion could be prevented from doing so on public property near clinics. Citizens could be forbidden from ­financially supporting as many political candidates as they chose. Politicians could sue, or threaten to sue, citizens to punish them for expressing critical views, and effectively shut down opposition. Workers could be forced by law to support political causes with which they disagree. The Court held the line against such outcomes.

October 24, 2014 in Walsh, Kevin | Permalink

Why I am also #waitingforSutton

Earlier this week, I began to notice #waitingforSutton on Twitter. And one morning, when the Sixth Circuit posted links to its opinion a little later than expected, I was surprised to find myself rather eager to read whatever opinions might be coming in the Sixth Circuit's same-sex marriage cases. This is due in no small part to Judge Sutton's presence on the panel.

Many who attended or heard the audio of the August 6 oral arguments believe that Judge Sutton's vote one way or the other will be decisive. That assessment seems accurate, as is the belief that the Sixth Circuit is less likely to conclude that the Fourteenth Amendment to the Constitution of the United States requires states to redefine marriage to include same-sex couples than the Fourth, Seventh, and Tenth Circuits have proven to be. 

There are therefore a couple of obvious reasons why people are #waitingforSutton. A Sixth Circuit decision upholding state laws would create a circuit split and almost certain cert grant. And the decision could come any day now. (Oral arguments were August 6, and according to the Sixth Circuit Appellate Blog, "the Sixth Circuit's average time between argument and decision is 2-3 months ....").

These are not the only reasons, though, and for me at least, not the most important. Judge Sutton is an excellent judge and an excellent writer. As I've said before, Judge Sutton's opinions are "conversational and accessible to an intelligent lay reader." Whatever the outcome Judge Sutton's opinion ultimately supports, it is unlikely to convey the "disdain for lawyers' arguments or contempt for legislators and voters" that comes through in Judge Posner's opinion in Baskins v. Bogan.

I do not expect Judge Sutton to vote to hold the states' marriage laws unconstitutional. But if he were to do so, I would expect his opinion explaining that vote to be more persuasive than those that have been released thus far.

If, as is more likely, Judge Sutton votes to uphold the states' definition of marriage to require one man and one woman, and if the Supreme Court later holds to the contrary, my hope is that his opinion will be one that I can assign to serve the same functions as when I assign Judge Friendly's pre-Roe draft abortion opinion. A sound circuit court opinion before a bad Supreme Court decision can show a path not traveled in a different way than a powerful dissent.


For those seeking insight into Judge Sutton's thinking about constitutional law and judging more generally, here are some extrajudicial writings:

 Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) (HT: Originalism Blog)

 Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) (HT: Originalism Blog)

Barnette, Frankfurter, and Judicial Review (Marquette Lawyer, Fall 2012, pp. 13-23)

What Does--and Does Not--Ail State Constitutional Law, (Kansas Law Review, Vol. 59, pp. 687-714, 2011)

A Review of Richard A. Posner, How Judges Think (Michigan Law Review, Vol. 108 pp. 859-76, 2010)

October 24, 2014 in Walsh, Kevin | Permalink

Monday, October 20, 2014

The Supreme Court of Pennsylvania's messy suspension of Justice McCaffery

By a four to one vote, five out of seven justices on the Supreme Court of Pennsylvania have temporarily suspended one of their own from his judicial duties.  The court's order is here; a concurring statement by the Chief Justice is here; and the dissenting statement is here. An earlier statement of the now-removed justice and an earlier statement of the Chief Justice are here

I have not followed all of the underlying matters closely enough to have confidence in this judgment, but my impression from afar after reviewing the order, the accompanying statements, and press reports is that the Supreme Court of Pennsylvania looks worse after this order than before. Justice Todd's dissenting statement seems sensible. Chief Justice Castille's description of his colleague as a sociopath is discreditable. Judicial ethics is not defined by rules only, but also by virtues such as temperance and judiciousness.

October 20, 2014 in Walsh, Kevin | Permalink

Sunday, October 19, 2014

Susman Godfrey, the Houston subpoenas to nonparty pastors, and the utter ordinariness of burdensome third-party civil discovery

The City of Houston has filed a preliminary response to the motion to quash subpoenas it served on five nonparty pastors seeking discovery, among other things, of these pastors' sermons. Like the mayor's initial "blame it on the pro bono lawyers" defense, the response is hard to credit as anything other than a public relations move. The response removes the word "sermons," but even as amended, Houston's subpoenas are still asking for sermons and for much more.

Consider request number 4: "All communications with members of your congregation regarding HERO or the petition." Now consider the definition of "communications": "[E]very direct or indirect disclosure, receipt, transfer, or exchange of information, inquiry or opinion, however made, whether oral, visual, in writing or otherwise, including without limitation any conversation or discussion by means of letter, note, package, invoice, statement, notice, memorandum, inter-office correspondence, telephone, telegraph, email, telex, telecopies, text message, instant message, cable communicating data processors, or some other electronic or other medium."

There is no hard and fast rule at work here, but generally speaking discovery requests like these begin with the broadest claims and then narrow from there. The word "sermons" was originally in request number 12. By the time the recipient would have arrived at that point, however, it would have been obvious that even coming close to full compliance with these broad requests would take dozens of hours. If you don't believe me, take a look at request number 1 yourself.

The specific mention of "sermons" was an unforced error that allowed recipients to provide a hook that would draw public attention to the burdensome nonparty discovery requests sent by the city. But getting rid of that one word does not change the substance of the city's requests one bit. They remain as burdensome as they were from the beginning. 

An underreported angle of this whole story thus far is the nature of the legal representation provided to the city. In particular, the Mayor's "blame the pro bono lawyers" response is hard to take seriously when the pro bono lawyers include a lead counsel team from Susman Godfrey, L.L.P. The subpoena request posted by plaintiffs' counsel went out under the signature of a Susman Godfrey associate and two partners. According to Susman Godfrey's website, the more senior partner is "lead counsel for the City of Houston in its lawsuit against a Xerox affiliate for breach of contract, fraud, and other wrongdoing in connection with billing and collection for hundreds of millions of dollars of emergency medical services provided by the City's Fire Department" and also "lead counsel for the City in its multi-hundred million dollar lawsuit against actuarial firm Towers Watson for gross negligence and professional malpractice in connection with benefits under the Houston Firefighters' Relief and Retirement Fund." The other partner is a former EIC of the Texas Law Review and law clerk for Fifth Circuit Judge Jerry Smith, currently serving as "Susman Godfrey's docket partner with responsibility for staffing client engagements across our five offices." These are very capable, experienced lawyers. At least one of them is currently handling litigation involving hundreds of millions of dollars for the city. Whether Mayor Parker was previously aware of the specific wording of specific subpoenas is beside the point.  She knows full well how lawyers like these, with the kinds of practices that they have, would have approached third-party discovery in the City's HERO case. It is therefore not credible for Mayor Parker to put distance between herself and the city's litigation strategy as pursued by Susman Godfrey. The cosmetic and minuscule amendment offered by the city in its preliminary response after Mayor Parker's attention was drawn to these particular subpoenas suggests that the city's overall litigation strategy includes deliberately imposing substantial burdens on the plaintiffs' allies. 

Mayor Parker and the city's lawyers seem to have been frustrated for months by what the city's lead counsel from Susman Godfrey has termed "the public hoopla" surrounding their case. (This characterization, for example, came in an August 2014 press release.) And by the standards of the typical business litigation dispute handled by the firm, this case does seem a bit of a circus on both sides. But the dispute over "sermons" in the subpoenas is itself a sideshow against the utter ordinariness of the burdens that lawyers inflict on nonparties every day through broad civil discovery requests. When everything settles down and the culture-war commentariat moves on, one can only hope that firm judicial management will lessen the burdens imposed by Houston's requests. 



October 19, 2014 in Walsh, Kevin | Permalink

Coeur D'Alene compelled marriage celebration lawsuit a sign of things to come

The City of Coeur D'Alene is a defendant in a federal lawsuit brought by Donald and Evelyn Knapp, a husband-wife team of ordained ministers who perform wedding ceremonies in their family business, The Hitching Post, LLC (also a plaintiff). The City has said that the Knapps' refusal to perform a same-sex marriage ceremony would violate the City's nondiscrimination ordinance. The Knapps contend that the City's threatened punishment of them would violate the First and Fourteenth Amendments and Idaho's Religious Freedom Restoration Act.  

The complaint quotes a deputy city attorney as setting forth the city's stance and explaining how that stance depends on the Ninth Circuit's recent judicial redefinition of marriage in Idaho to require inclusion of same-sex couples:

“For profit wedding chapels are in a position now where last week the ban [on same-sex marriages] would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit… If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.”

It is noteworthy that this deputy city attorney describes the celebration of marriage ceromonies as just another "service," and the Knapps' refusal to celebrate a same-sex marriage ceremony as a refusal to provide services on the basis of sexual orientation. States that have statutorily redefined marriage to be an institution open to same-sex couples have included statutory exemptions for churches and clergy that would not require them to solemnize same-sex unions. Generally speaking, they distinguish between solemnization and other services related to marriage. Because Idaho's marriage redefinition has been accomplished by the judiciary instead of the legislature, the scope of obligations that may be imposed by state law (with which municipal law must typically comply) is unclear. To be sure, it is also unclear whether the Knapps' business--in contrast with the Knapps themselves--would have fallen within a statutory exemption even if there had been one in Idaho. But cases like this highlight the kinds of questions that will arise over the next several years as cities, states, and everyone else negotiates the changes that come from the federal judicial redefinition of marriage.

Eugene Volokh has provided a persuasive analysis concluding that the city's application of its nondiscrimination ordinance to the Knapps and The Hitching Post, LLC would violate the First Amendment's prohibition of compelled speech and the Idaho Religious Freedom Restoration Act. I continue to believe that an initial question in cases like these is whether a refusal to perform marriage premised on one's understanding of what marriage is amounts to discrimination on the basis of sexual orientation so as to violate an anti-discrimination law. This is a question of the relevant municipal, state, or federal anti-discrimination law; here, a question of city law. I think that the city should reconsider its position on the meaning and application of that law. I further think that the city should reconsider its position on both First Amendment and state RFRA grounds. The best outcome very well could be a promise not to prosecute or impose liability under municipal law when doing so would violate federal law or state law, as would be the case here.

To the extent that this lawsuit is a sign of things to come, as I think it is, it would be nice if city and state officials could get the limits of anti-discrimination law right in the first instance without the need for judicial involvement. That said, it is a good tactical move to proceed directly to federal court. If one waits for prosecution in state court or to defend in state administrative proceedings, it will be much more difficult to get a federal forum for one's federal claims. 

October 19, 2014 in Walsh, Kevin | Permalink

Wednesday, October 15, 2014

A disenchanted courtwatcher names the best three or four cases? Not here.

Suppose one were to ask another to name the best three or four decisions that the Supreme Court has ever made, and that the answer is: Brown v. Board of Education, Marbury v. Madison, McCulloch v. Maryland, Gideon v. Wainwright, Baker v. Carr, and Reynold v. Sims. Would it be reasonable for the questioner to conclude that his interlocutor was someone disenchanted with the Supreme Court? I say no. The person providing such an answer obviously retains an enchanted understanding of the Supreme Court. But see Sahil Kapur on Erwin Chemerinsky, discussing "the progressive legal luminary's new book, provocatively titled "The Case Against The Supreme Court." 


October 15, 2014 in Walsh, Kevin | Permalink

Thursday, October 9, 2014

Re: SSM cert denials -- generally speaking, state courts are not bound by federal circuit court of appeals precedents

Some of the reporting about state actions regarding marriage following the Supreme Court's denial of certiorari may leave the inaccurate impression that something in our nation's federal structure dictates that state courts are bound by federal circuit court of appeals precedents. But that is not the case. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) ("The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located."). There are some older state appellate cases that appear to require state courts to follow federal authorities. Indeed, the state caselaw is surprisingly messy on this point. See generally Colin E. Wrabley, Applying Federal Courts of Appeals' Precedent: Contrasting Approaches to Applying Court of Appeals' Federal Law Holdings and Erie State Law Predictions, 3 Seton Hall. L. Rev. 1, 16-28 (2012). But most state courts have expressly stated (as they should) that they are not bound as a matter of vertical stare decisis by lower federal court decisions on questions of federal law.  Id. at 17-19.

Consider what is taking place now in South Carolina. (HT: How Appealing) The South Carolina Supreme Court has issued an injunction prohibiting probate judges from issuing marriage licenses until a federal district court addresses the issue in a pending case, Bradacs v. Haley. A lawyer for two women seeking a marriage license has criticized South Carolina Attorney General Alan Wilson for seeking the injunction. The Post & Courier reports:  

Asked whether Wilson was simply upholding South Carolina law by filing the injunction, S.C. Equality Attorney Malissa Burnette, who is representing Condon and Bleckley, said to do his job, Wilson must also uphold federal law.

"The Fourth Circuit Court of Appeals governs the South Carolina courts, and it has already stated that there's a fundamental right to marry for same sex couples and that to deny that is a denial of due process and equal protection," Burnette said. "That has already been decided. He has an oath to honor that law as well."

The South Carolina Supreme Court's order suggests that the South Carolina Supreme Court does not agree, although it is not as clear as it could be on this point. Perhaps this is because a South Carolina Supreme Court case from the 1940s stated that federal cases "are controlling of the meaning and effect of the Federal Constitution." State v. Ford Motor Co., 208 S.C. 379, 390 (1946). The court's statement about federal cases, in context, was not limited to decisions of the Supreme Court of the United States. As recently as last year, the Court of Appeals of South Carolina relied on this older state supreme court case for the proposition that lower federal cases are controlling. State v. Dukes, 404 S.C. 553, 562 (S.C. Ct. App. 2013). Regardless of what happens with same-sex marriage in South Carolina, the Supreme Court of South Carolina should clarify and fix the state's approach to the purported binding effect of lower federal court judgments.

This issue has come up in recent years in Virginia. In MacDonald v. Moose, a split panel of the United States Court of Appeals held the state's sodomy prohibition in Virginia Code 18.2-361 facially unconstitutional under Lawrence v. Texas. The Supreme Court of Virginia had previously rejected just such a challenge. Virginia courts are continuing to follow the state decision rather than the federal decision. See, e.g., McClary v. Virginia, No.  No. 0240-13-4 (Ct. App. Va. 2014)Saunders v. Virginia, 62 Va. App. 793, 753 S.E.2d 602 (2014). (For whatever it's worth, I've argued elsewhere that the Fourth Circuit's decision in MacDonald is wrong.)

October 9, 2014 in Walsh, Kevin | Permalink

Thursday, September 25, 2014

225 Years Ago Today: First Twelve Amendments Proposed by Congress

Today marks the two hundred and twenty-fifth anniversary of the day on which the First Congress proposed to the states for ratification the first set of amendments to the Constitution. The first two did not make it with other ten, which are now more commonly known as the Bill of Rights. (The first proposal was never ratified at all, while the second was ratified over two hundred years later as the twenty-seventh amendment.)

September 25, 2014 in Walsh, Kevin | Permalink

Finnis on the relationship between judicial impartiality and the technical rationality of positive law

I recently came across this passage from John Finnis that explains the relationship between judicial impartiality and the technical rationality of the law:

In the working of the legal process, much turns on the principle--a principle of fairness--that litigants (and others involved in the process) should be treated by judges (and others with power to decide) impartially, in the sense that they are as nearly as possible to be treated by each judge as they would be treated by every other judge. It is this above all, I believe, that drives the law towards the artificial, the techne rationality of  laying down and following a set of positive norms identifiable as far as possible simply by their 'sources' (i.e. by the fact of their enactment or other constitutive event) and applied so far as possible according to their publicly stipulated meaning, itself elucidated with as little as possible appeal to considerations which, because not controlled by facts about sources (constitutive events), are inherently likely to be appealed to differently by different judges. This drive to insulate legal from moral reasoning can never, however, be complete.

John Finnis, Natural Law and Legal Reasoning, in Natural Law Theory, Robert George, ed., p. 150.

While Professor Finnis acknowledges that legal reasoning is never completely insulated from moral reasoning, this passage explains one way in which natural law theory justifies the positivity of positive law. It is a helpful corrective to a tendency in contemporary constitutional theory to set natural law reasoning in opposition to constitutional originalism.

September 25, 2014 in Walsh, Kevin | Permalink

Wednesday, September 24, 2014

225 Years Ago Today: The Judiciary Act of 1789

The Judiciary Act of 1789 was enacted two hundred twenty-five years ago today. It was a monumental achievement for the First Congress. Among other things, the Act gave concrete institutional shape to a judiciary left open-ended in Article III. (Remember the "Madisonian compromise"? The biggest fight surrounding the first Judiciary Act centered on the need for an extensive system of lower federal courts.) The Act also began the process of working out the relationship between state and federal judiciaries, advancing a process of constitutional liquidation anticipated by Hamilton in Federalist No. 82. And Section 25 of the Act, which provided for Supreme Court review of state decisions via writ of error, explicitly contemplated judicial determinations of the constitutionality of statutes. (This is the practice we now call "judicial review," although that term did not emerge in connection with this practice until the early twentieth century.)

September 24 is also John Marshall's birthday; today would have been his 259th (b. 1755, d. 1835). It is fitting that Chief Justice Marshall and the federal judiciary share the same birthday. Perhaps the coincidence can remind us to be grateful not only for the Great Chief Justice, but also for Oliver Ellsworth, the father of the Judiciary Act and our third Chief Justice.

September 24, 2014 in Walsh, Kevin | Permalink