Sundry Thoughts on NFIB v. Sebelius, the Day After…

It's a Tax!

Okay. So by this point, you’ve all read the ACA/Obamacare opinion, which will from here on out be known as NFIB v. Sebelius. And if you’re reading this blog post, you’ve probably been reading other analyses around the interwebs. My favorite thus far (and my recommendations) are: Mike Dorf here (and I’m sure he’ll have more to say), the Slate discussion series, which includes Judge Richard Posner, Walter Dellinger, and Dahlia Lithwick (among others), and all of the SCOTUSblog coverage, including this helpful “Plain English” explanation of the decision. (The nice thing about SCOTUSblog, is that even when they write non-technically, they don’t get sloppy with the facts.)

Dewey Defeats Truman!

I am not going to make any effort to mold my thoughts into any sort of cohesive narrative. I read the opinions. I read a lot of the coverage. I am going to make this post a clearinghouse for all of my initial thoughts and observations on the off chance that you might be interested. And because I don’t want to waste you’re time, I’ll try to focus on thoughts/observations that have not already flooded the twitters and interwebs. Also, I’ve numbered them and sorted them by subject, so you can just skip the boring stuff. (Please, no jokes about how it’s all boring stuff.) Continue reading


The Roberts Switch: Revisited! Updated!

After my last post about the potential Roberts switch, I received some comments from readers via, well, the blog comments (imagine that!) and email. A few additional observations based on those comments (and see update below! (6/29 at 10:00am):

  • The joint dissent totally ignores the Chief’s opinion. It’s really quite amazing More than anything else, that is the best evidence I’ve heard that the Chief’s opinion was new/late. Perhaps the joint dissent did not have time to respond?
  • The joint dissent is written, generally, in the style of a “majority” opinion. It is more constructive (it builds up its own affirmative argument/decision) and less destructive (it attacks Justice Ginsburg’s “dissent” as a sort of counter-punch, rather than its main thrust).
  • The severability analysis at the end of the joint dissent reads more like something that was necessary to the outcome of the case, not just an academic exercise that the joint dissenters went through in the service of some sort of desire for completeness. How many dissents go through a severability analysis like that? Perhaps it was written as a majority, but once the majority was lost, there was no need to cut it.

Those are some good observations. (Thanks comments!) And based on those observations, my needle has definitely moved a bit more toward “it was the majority before a switch!”

But there are still some problems. Let’s assume that things started out after conference with Roberts in a 5-4 majority with Kennedy, Scalia, Alito, and Thomas, as posited by the switch hypothetical. In that scenario, Ginsburg is assigned to pen the dissent. But who got assigned the majority decision? How does that explain the “joint dissent” strangeness? In any event, under this theory, at the last minute, Roberts changes his mind! And his opinion is so late that there’s no time for the joint dissent to change the opinion.

Well, if that happened, then how did Justice Ginsburg have time to adjust her dissent to respond to the Chief Justice’s opinion? If she had time, surely the joint dissenters should have had time as well — at least enough time to make the cosmetic changes that would have been required, or to respond to the Chief’s tax argument. And why would the joint dissenters not join some/all of the Chief’s commerce ruling? Why did the Chief feel the need to draft his own Commerce Clause “essay” instead of just joining the joint dissenters’ opinion on that issue, when the holdings were remarkably similar?

The joint dissent does read like a majority. And the failure to address the Chief’s opinion is indeed extremely strange. But there are other explanations besides a last-minute defection. What about a scenario where the Chief was unwilling to commit to the joint dissenters at the conference, leaving the conference as sort of a free agent or a loner from the outset. The joint dissenters then authored a “draft majority” and circulated it in the hopes of gaining the Chief’s vote. It failed to do so. But from the conference, the Chief knew that he could get the liberals’ vote on the tax issue. So he informed the rest of his colleagues (at some point, perhaps immediately after the conference) that he was going to draft his own opinion for the Court, telling them a general outline of his theory. Justice Ginsburg, who knew that she would not have 5 votes for a Commerce Clause ruling, could go ahead and draft (or keep) much of her “dissent” on the commerce point. And she and the others were free to join the Chief on the tax issue without adding their own discussion. 

Meanwhile, the joint dissenters already had a full opinion on the commerce issue, so there was no need join the Chief in that portion of the opinion. And perhaps they thought the tax issue was not worth spilling too much ink.

But anyway, if Justice Ginsburg had time to digest and respond to the Chief’s opinion, I just can’t believe that the joint dissenters didn’t have the time. I have no doubt there is a great back-story here, but I don’t necessarily think that the story needs to be a “last minute” defection, or some sort of spite-fueled dissent from the conservative wing. I am, however, really looking forward to that law clerk’s tell-all book!

Update (6/29 at 10:00am):

David Frum published an email from a reader that is more along the lines of what I’m thinking:

I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

I like that. As far as I’m concerned, any theory of a Roberts changed vote (and the timing of such a change) needs to explain the following:

  1. How did Roberts have time to write such a long opinion? (Not a last-minute change!)
  2. Why would Ginsburg have time (and reason) to respond to Roberts’s opinion, but the joint dissenters would not?
  3. Why would the joint dissent be a joint dissent, instead of a single-authored dissent?
  4. Why would the joint dissenters not have joined Roberts’s discussion of the Commerce Clause holding? (Or why would he not join theirs?)

The “last minute switch!” or “they had him and lost him!” theories don’t really have answers to all of those questions.

The Roberts Last Minute Switch? Not So Fast…

Lawrence Solum (Legal Theory Blog), David Bernstein (Volokh Conspiracy), and Paul Campos (Salon) all speculate that perhaps Chief Justice Roberts “suddenly changed his vote” at the “very last possible moment” (to quote Professor Campos). (Professor Solum merely speculates that the Chief’s vote changed at some point after the initial conference.)

(See my update to this post here)

Of course, I have no idea what happened in the conference, and the four-Justice “joint dissent” from Scalia, Thomas, Kennedy, and Alito is indeed strange. When was the last time we had a collective dissent with no single author like that? But I think folks might be jumping the gun a bit to assume the explanation behind the joint-dissent is a switch by the Chief. Continue reading

Worst Joke of the Day (or Best, if You Like Horrible Jokes)

Courtesy of the Wall Street Journal Law Blog and the Maryland Court of Appeals: It’s the same old story of cops buying a meal for a suspect (or getting him to lick an envelope) and then using the suspect’s left-behind saliva for DNA testing. Here, the cops bought the suspect a meal from McDonald’s. Take it away, Judge Harrell!

But in Footnote 18, Judge Harrell zeroed in on a critical detail the case file omitted: “The record does not specify whether Williamson was provided with a McDonald’s Extra Value Meal. If that was what he received, it appears that the State received the ‘extra value,’ not Williamson.”

The Wall Street Journal’s response? “Grimace!”



Special Topics in Statutory Interpretation (or How to Deny Antiharassment Protection to Public School Students)

I used to live in NYC, so while this blog is focused on Washington law I do still try to keep up with what’s happening back in the Empire State. I was particularly interested in a recent Court of Appeals decision (that’s the highest state court in New York) interpreting the New York Human Rights Law (“HRL”) that provides antidiscrimination and antiharassment protections to students. According to the Court of Appeals, the statute doesn’t protect public school students. Apparently, the New York antiharassment law only applies if you’re privileged enough to attend a private school.

Mike Kavey at the Columbia Law School Gender & Sexuality Law Blog (go Lions!) has the full story about what this decision means and why it’s terrible:

The decision converts HRL Section 296(4)—one of the broadest, most inclusive, and most powerful state-level student-civil-rights measures in the nation—into a legal remedy available only to a narrow class of privileged individuals; namely, those who can afford private education. The ruling marks a painful setback for civil rights in New York, particularly for the rights of lesbian, gay and bisexual (LGB) youth; this is because HRL Section 296(4) is the only civil rights measure under New York or federal law to specifically authorize students to file suit when school officials permit harassment based on sexual orientation. The court’s decision also contributes to racial and economic injustice, in that public school students, who are more likely to be racial minorities and more likely to come from lower-income families than their private-school counterparts, can no longer access the uniquely affordable procedures and resources available to those who file HRL discrimination complaints with the State Division of Human Rights.

As they say, you should read the whole thing.

I want to add one thought on the Court of Appeals’ decision (which you can read in full here), because it uses a method of statutory interpretation that I’ve seen used before, and which I always find woefully unconvincing. Continue reading

BREAKING: SDNY Rules DOMA Unconstitutional

Decision by Judge Jones in Windsor v. United States, No. 10 Civ. 8435 (S.D.N.Y.) available HERE.

More later…

UPDATE at 3:45pm PT

It’s an interesting decision. The general analysis, it seems to me, is based on two underlying themes. First, DOMA does not pass the rational basis test because it does not do enough to discriminate against same-sex couples. In other words, if Congress really wanted to promote opposite-sex couples or disapprove of same-sex couples or promote the raising of children in two-parent, opposite-sex married families, it would have to take more direct action. Maybe Congress could ban interstate same-sex adoption or something. But merely rejecting state-created rights is insufficiently linked to the government’s stated purposes. Same-sex couples can still raise kids under DOMA! So how is DOMA rationally related to raising children in married mother/father families? This is a tricky/subtle move, since it (1) allows the District Court to apply the non-controversial rational basis review (as opposed to some heightened form of scrutiny) and (2) treats the government’s purported interest in promoting same-sex couples as legitimate. Moreover, it is pretty clearly a Catch-22, which the District Court makes no attempt to hide. If Congress attempted to take more a direct action rationally related to its stated interests then such an action would likely (a) be so overwhelmingly discriminatory that they would not be upheld, and/or (b) intrude on the states’ ability to regulate marriage and family issues and therefore go beyond Congress’s limited enumerated powers.

Second, the District Court seems to discount or ignore Congress’s expressive or declaratory interests. At its heart, I think Congress’s actual purpose in passing this law was to make a cultural/moral statement that the United States government does not favor same-sex marriage and disapproves of the practice to the extent any state is considering extending marriage to such couples. In this sense, DOMA is a lot like the Hyde Amendment for abortions: Sure, you can do it, but we’re not going to pay for it! Can Congress pass a law that is only rationally related to its moral disapproval of some people’s actions? The Court seems to say no. And I think that is probably right under the Supreme Court’s Equal Protection jurisprudence (though maybe there’s a different answer under the privacy/abortion cases; I dunno). Animus alone is an insufficient purpose to support a law that actually affects people. It seems that last part — an actual effect on people — is the key. I mean, even putting aside standing issues (though maybe I shouldn’t), no court is going to strike down a law creating “National Cupcake Day” as insufficiently related to a congressional interest in promoting cupcakes because it doesn’t actually do anything to purchase or subsidize cupcakes. It’s enough that Congress just wants to say it likes cupcakes, and that expressive purpose is rationally related to its law. Right?

But enough of that, here’s what the opinion actually says. Continue reading

Monday Morning Mash-up: June 5, 2012

Fine, it’s Tuesday. Lay off me!

What a light week for the Courts of Appeals. All the Judges must have taken extended Memorial Day vacations. Or maybe they all had huge BBQ dinners and spent the rest of the week napping. I have no idea. But whatever the reasons, we got two Court of Appeals decisions last week. Two! And they were both from Division 1, so nothing from our friends in Division 2 or Division 3. (Of course, I’m now holding my breath for the avalanche this week. Ugh.)

Because we’re light on cases, we’ll be heavy on music this week. Cool? First song of the week is PJ Harvey’s On Battleship Hill.

The official video has some extra introductory spoken word stuff that is weird/interesting, but not part of the song itself. (You can read a bit about the making of the video via NPR here.) Apparently, the song is about the Battle of Chunuk Bair from World War I.

To fill the hole in your heart caused by the lack of Court of Appeals opinions, here’s a bonus song of the week! It’s one of my favorite songs of all time, and it has without a doubt my favorite song name of all time: Dustin Hoffman Scrubs Too Hard and Loses Soap by Of Montreal. The song has nothing to do with Dustin Hoffman. In fact, I have no idea what the song is about. For some reason, every song on the album has something to do with Dustin Hoffman and some sort of controversy with his wife and the family bathtub. Seriously. But it’s great and catchy and short and fun. Enjoy.

And with that, it’s on to last week’s cases, both of them:

Robert S. Moore v. Commercial Aircraft Interiors, LLC (Division 1, May 29, 2012) — on an employer’s ability to threaten suit against its former employees to prevent former employees from taking jobs with competitors.

Greenbank Beach and Boat Club, Inc. v. Dallas K. Bunney (Division 1, May 29, 2012) — on the “prelitigation bad faith” basis for awarding attorneys’ fees.