Justice Scalia is not a fan of Carolene Products

From Justice Scalia's concurring opinion in Schuette v. Coalition to Defend Affirmative Action:

The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by "'prejudice against  discrete  and  insular  minorities'" merits "'more exacting judicial scrutiny.'"   Post, at 31 (quoting United States v. Carolene Products, 304 U. S. 144, 152-153, n. 4). I say derived from that dictum (expressed by the four- Justice  majority  of  a  seven-Justice Court)  because  the dictum  itself  merely  said  "[nJor need  we  enquire  . . . whether prejudice against discrete and insular minorities may be a special condition," id., at 153, n. 4 (emphasis added).  The dissent does not argue, of course, that such "prejudice" produced §26.  Nor does it explain why certain racial minorities in Michigan qualify as " 'insular,' " mean- ing that "other groups will not form coalitions with them- and, critically, not because of lack of common interests but because  of  'prejudice.' "    Strauss,  Is  Carolene  Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257.  Nor does it even make the case that a  group's "discreteness" and "insu- larity" are political liabilities rather than political strengths-a  serious question  that  alone  demonstrates the prudence of the Carolene Products dictumizers in leaving the "enquir[y]" for another day.  As for the question  whether  "legislation which restricts  those  political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . . is to be subjected to more  exacting judicial scrutiny," the  Carolene Products Court found it "unnecessary to consider [that] now."  304 U. S., at 152, n. 4.  If the dissent thinks that worth considering today, it should explain why the election of a university's governing board is  a "political process which can ordinarily be expected to bring about repeal of undesirable legislation," but Michigan voters' ability to amend their Constitution is not.   It seems to me quite the opposite. Amending the Constitution requires the approval of only "a majority of the electors voting on the question."  Mich. Const., Art. XII, §2.   By contrast, voting in a favorable board (each of  which has eight members) at  the three major  public  universities  requires  electing  by  majority vote  at  least  15  different  candidates, several  of  whom would be running during different election cycles.   See BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting).  So if Michigan voters, instead of amending their Constitution, had pursued the dissent's preferred path of electing board members promising to "abolish race-sensitive admissions policies," post, at 3, it would have been harder, not easier, for racial minorities favoring affirmative action to overturn that decision. But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.

Thomas Cooley on the Second Amendment

From The General Principles of Constitutional Law in the United States of America by Thomas Cooley (1880):

The Right is General. — It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make pro vision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make airy provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of' the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

Notable quotable: Griswold v. Connecticut

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

Justice William O. Douglas's opinion for the Supreme Court in Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Court ruled that a Connecticut law that prohibited the use of contraceptives violated a constitutional right to privacy.

Notable quotable: Bradwell v. Illinois

"The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life...The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. "

Justice Joseph P. Bradley's concurring opinion in Bradwell v. Illinois, 83 U.S. 130 (1873), in which the Supreme Court ruled that Myra Bradwell's right to practice law was not among the privileges protected by the Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution.

Notable quotable: Buck v. Bell

"Three generations of imbeciles are enough."

Justice Oliver Wendell Holmes, Jr.'s opinion for the Supreme Court in Buck v. Bell, 274 U.S. 200 (1927), in which the Court ruled that a state statute permitting compulsory sterilization of the unfit, including the intellectual disabled, "for the protection and health of the state" did not violate the Due Process clause of the Fourteenth Amendment to the United States Constitution.

Who said this? "The filibuster is far from a procedural gimmick”

Who said this? (keep reading)

The filibuster is far from a “procedural gimmick.” It is part of the fabric of this institution. It was well known in colonial legislatures, and it is an integral part of our country’s 217 years of history. 

The first filibuster in the U.S. Congress happened in 1790. It was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress. 

Since 1790, the filibuster has been employed hundreds and hundreds of times. 

Senators have used it to stand up to popular presidents. To block legislation. And yes – even to stall executive nominees. 

[. . .] 

It encourages moderation and consensus. It gives voice to the minority, so that cooler heads may prevail. 

It also separates us from the House of Representatives – where the majority rules. 

And it is very much in keeping with the spirit of the government established by the Framers of our Constitution: Limited Government…Separation of Powers…Checks and Balances. 

Mr. President, the filibuster is a critical tool in keeping the majority in check. This central fact has been acknowledged and even praised by Senators from both parties 

[. . .] 

For 200 years, we’ve had the right to extended debate. It’s not some “procedural gimmick.” 

It’s within the vision of the Founding Fathers of our country. They established a government so that no one person – and no single party – could have total control. 

Some in this Chamber want to throw out 217 years of Senate history in the quest for absolute power.

Who said this? Senator Harry Reid said this.

Chief Justice Roberts on theory vs. reality

From Wednesday's oral argument in Kaley v. United States:

MR. DREEBEN: The grand jury is set up as an independent body to protect the defendant from unfounded prosecutions. It is structurally independent from the prosecution and the courts. And it's composed of -­

CHIEF JUSTICE ROBERTS: I understand the theory. In reality it's not terribly -- it's not great insulation from the overweaning power of the government.

Judge Posner on corporations

Judge Posner

"A corporation is a ganglion of relations with people, most of whom, in the case of a railroad anyway, are not rich--shippers, railroad workers, passengers, employees of suppliers, shippers' customers, and families of the foregoing. Even if all the corporation's shareholders are rich, it is by no means certain that the predominant part of any increase in the corporation's costs that is due to more extensive tort liability will come to rest on them rather than on the persons with whom the corporation is economically entwined. Then too large corporation will on average be a defendant in more suits than will a small one; the total burden on it may be no less..."

Richard A. Posner, Cardozo: A Study in Reputation 47-48 (1990).

One Senator's view of the debt ceiling negotiations

“The fact that we are here today to debate raising America's debt limit is a sign of leadership failure. It is a sign that the U.S. Government can't pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government's reckless fiscal policies.. ... I therefore intend to oppose the effort to increase America’s debt limit.”

-Senator Barack Obama, March 16, 2006

U2's Bono on foreign aid and capitalism

Chief Justice Roberts on free speech

From Chief Justice Roberts' majority opinion in Snyder v. Phelps, 131 S. Ct. 1207 (2011):

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and...inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Clarence Thomas, affirmative action, and Brown v. Board of Education

From Justice Thomas's concurrence in Fisher v. University of Texas at Austin:

The University’s arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University’s determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.  Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.

...

My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

...

Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.

"So you're saying there's a chance!"

The Supreme Court's jurisdiction is largely discretionary. This means that it gets to pick and choose which cases it accepts. Over the past ten years, an average of more than 8,000 petitions are filed; yet the Court only accepts about 80 cases per term (or, ~1%). Less likely are in forma pauperis (IFP) petitions, which comprise nearly 80% of all petitions. Yet only about 11 IFP cases are granted of the 80 cases per term , which means that the likelihood of an IFP petition being granted is less than two tenths of one percent. Many of these IFP petitioners are also pro se (advocating on one's own behalf before a court, rather than being represented by a lawyer).

With all that being said, you might be reminded of this scene:

Yes, Lloyd, there's a chance. But it's not a very good one.

But every once in a while, the Supreme Court gives you that chance. And it did just that on Monday as it granted certiorari in the case of Law v. Siegel. The question in the case is whether the Ninth Circuit erred in allowing the bankruptcy trustee to surcharge Law’s constitutionally protected homestead property.

Stephen Law beats the odds. He filed a pro se, in forma pauperis petition that was granted by the Court (by the time Law's reply brief was filed in November, he had counsel).

Lawyers, legal practitioners, and law students used to reading highly polished appellate briefs will not want to take any notes from Law's petition. The errors start on the cover page and keep coming, fast and furious. But this post isn't intended to criticize the petition. It is to highlight that the highly improbable does happen. And sometimes the Court reads past all the errors and says "yes."

I'll have more on this case as we approach oral argument sometime next fall.

"The Court’s decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies."

The conclusion of Justice Alito's dissent in Alleyne v. United States, regarding the impact of overruling a previous decision of the Court:

The Court’s decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies.

Supreme Court invalidates Arizona voter ID requirement; but Justice Scalia throws a lifeline

Earlier today, the Supreme Court invalidated Arizona's evidence-of-citizenship requirement to vote. Interest groups hailed the ruling:

“Today’s decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund. 

“The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live.”

On the other hand, it's important to understand the context of the decision. In it, Justice Scalia throws a lifeline to Arizona, suggesting another way that the ID requirement could be instituted:

Since, pursuant to the Government’s concession, a State may request that the EAC alter the Federal Form to include information the State deems necessary to determine eligibility, see §1973gg–7(a)(2); Tr. of Oral Arg. 55 (United States), and may challenge the EAC’s rejection of that request in a suit under the Administrative Procedure Act, see 5 U. S. C. §701–706, no constitutional doubt is raised by giving the “accept and use” provision of the NVRA its fairest reading. That alternative means of enforcing its constitutional power to determine voting qualifications remains open to Arizona here. In 2005, the EAC divided 2-to-2 on the request by Arizona to include the evidence-ofcitizenship requirement among the state-specific instructions on the Federal Form, App. 225, which meant that no action could be taken, see 42 U. S. C. §15328 (“Any action  which the Commission is authorized to carry out under this chapter may be carried out only with the approval of at least three of its members”). Arizona did not challenge that agency action (or rather inaction) by seeking APA review in federal court, see Tr. of Oral Arg. 11–12 (Arizona), but we are aware of nothing that prevents Arizona from renewing its request.10 Should the EAC’s inaction persist, Arizona would have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement and that the EAC is therefore under a nondiscretionary duty to include Arizona’s concrete evidence requirement on the Federal Form. See 5 U. S. C. §706(1). Arizona might also assert (as it has argued here) that it would be arbitrary for the EAC to refuse to include Arizona’s instruction when it has accepted a similar instruction requested by Louisiana.¹¹ 

¹¹The EAC recently approved a state-specific instruction for Louisiana requiring applicants who lack a Louisiana driver’s license, ID card, or Social Security number to attach additional documentation to the completed Federal Form. See National Mail Voter Registration Form, p. 9; Tr. of Oral Arg. 57 (United States).

It will be no surprise to see Arizona follow this course of action.

Tommy Tutone and the Supreme Court

The Supreme Court is not immune from occasional humor or pop-culture references. From Justice Kagan's opinion in American Trucking Associations, Inc. v. City of Los Angeles:

To address the community’s concerns, the Board implemented a Clean Truck Program beginning in 2007. Among other actions, the Board devised a standard-form “concession agreement” to govern the relationship between the Port and any trucking company seeking to operate on the premises. Under that contract, a company may transport cargo at the Port in exchange for complying with various requirements. The two directly at issue here compel the company to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: “How am I driving? 213–867–5309”) and (2) submit a plan listing off-street parking locations for each truck when not in service. Three other provisions in the agreement, formerly disputed in this litigation, relate to the company’s financial capacity, its maintenance of trucks, and its employment of drivers.

An interesting admission from Justice Scalia in the DNA patent case?

Justice Scalia's concurrence in today's decision in Association for Molecular Pathology v. Myriad Genetics, Inc.:

JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

A very interesting admission from a Supreme Court Justice, and especially from Justice Scalia? He seems to be saying "I don't quite understand the science enough to join the entire opinion, but I'm sufficiently informed to agree with the overall decision."

A Supreme Court case about raisins--in pictures

There once was a raisin...

Actually, there were a bunch of raisins...

In fact, there were so many raisins that prices plummeted. The government stepped in...

It established the Raisin Marketing Order, which removed surplus

raisins from the open market in order to control prices...

Marvin and Laura Horne of Raisin Valley Farms were not to0

 thrilled with this arrangement. They wrote to the USDA:

“[W]e are growers that will pack and market our raisins. We reserve our rights under the Constitution of the United States . . . [T]he Marketing Order Regulating Raisins has become a tool for grower bankruptcy, poverty, and involuntary servitude. The Marketing Order Regulating Raisins is a complete failure for growers, handlers, and the USDA . . . [W]e will not relinquish ownership of our crop. We put forth the money and effort to grow it, not the Raisin Administrative Committee. This is America, not a communist state.”

Disillusioned with a regulatory scheme they deemed "outdated" and exploitive of farmers, the Hornes looked for ways to avoid the Raisin Marketing Order's requirements, particularly its mandatory raisin reserve program. Because those requirements apply only to handlers, the Hornes implemented a plan to bring their raisins to market without going through a traditional middle-man packer. As part of their plan, the Hornes purchased their own equipment and facilities to clean, stem, sort, and package raisins...

The United States Department of Agriculture was not amused...

An Administrative Law Judge found the Hornes liable for nearly $500,000

of withheld reserve raisins, and the District Court agreed...

The Hornes argued that the reserve requirement was a taking in violation of the 5th Amendment...

The Ninth Circuit ruled that that the Hornes were handlers subject to the Raisin Marketing 

Order, but said that their takings claim should have been brought in a different court...

This would have required the Hornes to take the case to a different court and start over...

Fortunately, the Supreme Court stepped in and decided to hear the case...

The Supreme Court decided that the Ninth Circuit has 

jurisdiction to decide petitioners’ takings claim...

The Court also decided that the Hornes may raise their takings-based defense in the context

of the enforcement proceeding initiated by the USDA under the raisin program...

As a result of this decision, the case will return to the Ninth Circuit, where the

court will determine if the USDA’s imposition of fines and civil penalties on the Hornes,

in their capacity as handlers, violated the Fifth Amendment.

“We are growers that will pack and market our raisins...This is America, not a communist state.”

The Hornes, owners of Raisin Valley Farms, wrote to the Secretary of Agriculture in 2002 to protest the Agricultural Marketing Agreement Act of 1937 (AMAA) and the California Raisin Marketing Order:

“[W]e are growers that will pack and market our raisins. We reserve our rights under the Constitution of the United States . . . [T]he Marketing Order Regulating Raisins has become a tool for grower bankruptcy, poverty, and involuntary servitude. The Marketing Order Regulating Raisins is a complete failure for growers, handlers, and the USDA . . . [W]e will not relinquish ownership of our crop. We put forth the money and effort to grow it, not the Raisin Administrative Committee. This is America, not a communist state.”

Today, the Supreme Court ruled that the Ninth Circuit had jurisdiction to hear the case, and the Hornes may raise a takings-based defense in the context of an enforcement proceeding initiated by the USDA under the raisin program.

Nick Jr. and Black History Month

Nick Jr. (and Sprout) are often on our TVs, but something that caught my attention this morning was a Nick Jr. commercial that made a reference to Black History Month.

Our daughter Chloe (3) watches Dora (her current favorite) and Diego, Kai-lan, Little Bill, and other shows; yet she has never even asked (or perhaps never even noticed) that they are Hispanic, Chinese, and Black. Frankly, I think that even if she did notice, she doesn't care; she watches these shows because she enjoys them. Period.

This sort of programming flies directly in the face of a notion that our society ought to be colorblind.

You might be thinking that we can't let our children grow up without knowing the history of discrimination in our country, and I wholeheartedly agree. But there is a time and place for that, and it's not for three year olds. Even then, Black History Month has been less about the history of discrimination and more about cherry-picking events, ideas, inventions, that just happen to be made by someone who was Black. This focus is never on the idea, but the person.

The Miss Black America pageant was started to protest the lack of black women in the Miss America pageant; a number of Black women have won the Miss America pageant since Vanessa Williams first won in 1984, yet we still have the Black Miss America pageant. Why?

My problem with the idea of Black (or any race) History Month is precisely that is focuses on race. This seems to be the antithesis of Dr. Martin Luther King's vision:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.

When we celebrate the history of any group, based solely on their race, it flies directly in the face of Dr. King's dream, no matter how well-meaning we are. By continuing to focus on race, and not character, we push Dr. King's vision further into the future.

This isn't about race, it's about history. And it's not about Black history, it's about American history. You might wonder who said this:

"I don't want a Black History month. Black History is American History. There's no white history month.

Morgan Freeman.