Monday, October 20, 2014

How an Ordinary Case Becomes a Great Case

By Michael Dorf

My most recent Verdict column compares the cert denials in the same-sex marriage cases to the series of per curiam decisions issued by the SCOTUS after Brown v. Board of Education, in which the Court summarily affirmed the lower court decisions that invalidated segregated facilities in every possible context, even though Brown itself arguably applied only to public education. After some analysis, I conclude that the comparison shows that perhaps United States v. Windsor (the DOMA case) was not a mere half-step as most observers thought at the time, but was, in retrospect, a great case.

The foregoing formulation raises the question of what makes a great case great.  I don't have a good answer to that question. Indeed, I recognize that it's not a very well-formed question. Any criteria for "greatness" will be mostly stipulative, even if what we mean by great is something like "very important." Important for whom? Measured how? Etc. Nonetheless, I think that, at least at the extremes, there would be widespread consensus about what cases are great and what cases are not so important. The point I want to make here is a generalization of the point I make in the column: The status of a cases as great may not be apparent when it is decided.

Marbury v. Madison is a leading example. Today, Marbury is the Ur-case of the constitutional law course, because it establishes the Supreme Court's power of judicial review of acts of Congress. But in its day, Marbury was important, if at all, chiefly for two other reasons: (1) It presented the question whether the Supreme Court could (or would) issue an order to the President (or Secretary of State), and if so, whether the Administration would comply; and (2) the drama in Marbury was connected to the much more important question of the power of Congress (in the Judiciary Act of 1802) to repeal a law creating federal judgeships. The Court's jurisdictional holding ducked question (1), and the Court's capitulation to Congress in Stuart v. Laird gave the Jeffersonian Republicans their victory. Accordingly, although the strong language in Marbury frustrated Jefferson, the resolution of the case was not seen as important. Only later, as the power of judicial review became more important, did Marbury retroactively take on the character of a great case.

More broadly, in the traditional common-law view, the greatness or lack of greatness of a case inevitably emerges over time. Lincoln had something like this phenomenon in mind when he said of Dred Scott v. Sandford, in his first Inaugural, "that it may be overruled and never become a precedent for other cases." Lincoln made that point as part of a broader argument against judicial exclusivity in constitutional interpretation, but putting aside questions about the proper scope of "popular constitutionalism," Lincoln's views with respect to precedent were quite ordinary, reflecting the standard view of precedent in a common-law system: the scope of a precedent is not clear until subsequent cases follow it, extend it, fail to follow it, or change it.

The occasional tendency of modern case law towards rule-ness--such that, as Fred Schauer has observed, precedents are sometimes written and then read as if they were statutes--cuts against the traditional common-law view. It's worth noting here (if only to flag for what might be a follow-up post some day) that Justice Scalia's idea that the rule of law requires rules is in some considerable tension with traditional common-law practices (as Justice Scalia has himself sometimes noted, as in his criticial discussion of the common law in A Matter of Interpretation). My broader point is that, taking the long view, there's nothing especially new or unlawyerly about the SCOTUS treating a case (here Windsor) as establishing a much broader proposition than it was thought to establish at the time.

I'll close with one more example. In modern case law and in constitutional law casebooks, Yick Wo v. Hopkins is typically cited as establishing the proposition that a law that is administered in a manner that discriminates on the basis of race (or national origin) denies equal protection as applied. However, while there is some language in the case that gestures vaguely in that direction, it reads much more like what would today be called a procedural due process decision: the fundamental flaw on which the Court fixated was the arbitrary discretion conferred on government officials to permit (or refuse to permit) the operation of a laundry. That doesn't mean that modern courts and commentators are wrong to cite Yick Wo for the proposition that discriminatory application violates equal protection. The meaning of the case changed over time.

In short, it shouldn't be surprising that the meaning of Windsor appears to have changed since it was decided. What is surprising is how quickly that happened.

Friday, October 17, 2014

Stop and Frisk Appeal, The Sequel

By Anil Kalhan

Were any of you feeling a sense of déjà vu on Wednesday? For the second time in as many Octobers, a panel of the U.S. Court of Appeals for the Second Circuit consisting of Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr. heard two hours’ worth of oral argument on procedural matters in the long-running litigation over the New York Police Department’s stop and frisk practices, Floyd v. City of New York and Ligon v. City of New York. New York City politics was in the air, as community-based groups and elected officials rallied outside the courthouse before the argument and called upon the three judges to “#stopthedelay” in moving forward with the stop and frisk reform process.

To briefly refresh your collective recollections, at almost exactly this time last year—on the eve of the New York City mayoral election—Judges Cabranes, Walker, and Parker were presented with a motion filed by the Bloomberg administration seeking a stay pending appeal of both U.S. District Judge Shira Scheindlin’s liability decision holding the NYPD’s stop-and-frisk practices unconstitutional and her accompanying order initiating a process to remedy those violations. In response, the motions panel not only granted the City’s stay motion, but also hastily acted sua sponte to oust Judge Scheindlin from the litigation altogether and, for good measure, grabbed jurisdiction for itself to adjudicate the merits of the stop and frisk appeal. Regular readers will recall that I examined some of the issues arising from that episode here and here. (Since then, I have developed the themes initially outlined in those posts in greater depth in a law review article that will be published in the Georgetown Journal of Legal Ethics in the coming weeks.) Professor Dorf examined the issues in the stop-and-frisk appeal at some length back then as well, and his posts are here and here.

But what a difference a year can make. In the year since Judges Cabranes, Walker, and Parker issued their Halloween Order, the new administration of Mayor Bill de Blasio settled the litigation and agreed to take steps to withdraw the City’s appeal, which would leave Judge Scheindlin’s liability opinion and remedial order in place and allow the stop and frisk reform process to proceed. New York’s police unions have sought to scuttle that settlement by moving to intervene in the litigation, so that they might prosecute the appeal in the City’s place. However, U.S. District Judge Analisa Torres denied the unions’ effort to intervene in a detailed opinion over the summer, concluding not only that their motion was untimely, but that they lacked any legally protectable interests sufficiently distinct from the City’s own interests to warrant intervention and did not have standing to pursue the appeal once the City itself had declined to do so. In an op-ed for the Huffington Post earlier this week, I argued that the appellate judges should affirm Judge Torres’s decision and grant the de Blasio administration’s bid to voluntarily dismiss the City’s appeal.

Only trace elements of the unpleasantness surrounding last year’s ouster of Judge Scheindlin were evident during Wednesday’s oral argument, which was held before a courtroom filled to capacity and was simulcast by video to two overflow rooms. Having attended the proceeding, my own impressions are broadly consistent with those given in news accounts. (For coverage of Wednesday’s oral argument, have a look at the New York Law Journal, Newsday, the Wall Street Journal, NY1, the Associated Press, and the New York Daily News.) All three judges seemed deeply skeptical of the claims for intervention advanced by the unions’ lawyers. It was not entirely clear whether the three judges agreed on the precise basis (timeliness, failure to satisfy the criteria for intervention, or standing) upon which Judge Torres’s order potentially might be affirmed—or even, for that matter, whether they had definitively made up their minds about which way to rule. But the lawyers appearing on behalf the unions faced pointed and challenging questions on all three of those potential grounds.

However, these news accounts largely ignored an important series of exchanges initiated by Judge Cabranes with the three lawyers representing the City and the two sets of plaintiffs concerning the precise nature of the decree that each of them was seeking. Judge Cabranes described this matter as a “clerical” question, and the ensuing discussion might have confirmed for many observers—who, given last year’s judicial smackdown, might have been hoping for some high courtroom drama—that (as Entertainment Weekly has scientifically proven) the sequel is invariably worse than the original. But the “clerical” issue that Judge Cabranes raised was more consequential than that description might have suggested. With respect to the unions’ efforts to intervene in the litigation, all three lawyers expressed agreement that they wished to see an order affirming Judge Torres’s denial of the unions’ motions to intervene as well as a second order denying the unions’ separate motions to intervene directly in the Second Circuit, which had been filed last fall. With respect to the City’s unopposed motion to voluntarily dismiss its appeal with prejudice, the three lawyers also agreed that they wanted to see the panel grant that motion and issue the mandate forthwith. As the lawyer appearing for the City emphasized, the de Blasio administration wanted to look forward, not backward, and all three lawyers indicated that they were eager to promptly get to work right away on the next stages of the reform process.

To that extent, the panel’s exchanges with the lawyers were fairly straightforward and indeed very “clerical.” However, those ostensibly clerical questions suddenly became a lot more substantive when Judge Cabranes raised the question of whether the panel should do anything with respect to Judge Scheindlin’s liability opinion. The contents of that opinion are a principal source of the unions’ objections to the settlement and a principal ground in support of their motions to intervene. Indeed, at least one newspaper columnist who strongly supports the unions’ position has expressly urged that, even if the panel denies the unions’ efforts to intervene and permits the settlement to go into effect, the liability opinion nevertheless should be vacated. In this context, it was rather odd when the City’s lawyer professed to have no position on the issue. By contrast, counsel for the plaintiffs in Floyd, Baher Azmy, made crystal clear that the plaintiffs would strenuously object to any vacatur or modification of the liability opinion. General news stories about the oral argument did not discuss this seemingly technical question—but the New York Law Journal’s Mark Hamblett (who writes for an audience primarily consisting of lawyers) perceptively picked up on its significance:

[Judge] Cabranes asked what should be done about the liability opinion and whether it should stand…. Azmy told the court he wanted the opinion to stay in place, because it is of a piece with the remedial order. And progress with the remedial process—training, better evaluations and supervision of police—cannot be measured without reference to the liability order. [link]

This exchange about the fate of Judge Scheindlin’s liability opinion was awkward, insofar as it marked the only moment during the argument in which the ouster of Judge Scheindlin by Judges Cabranes, Walker, and Parker directly came up. Judge Cabranes indicated, only a little bit obliquely, that he had raised the issue of what to do with the liability opinion in order to consider whether it might be seen as anomalous for the three judges to effectively “ratify” that opinion when, by virtue of "certain findings” that the panel had previously made in the course of Judge Scheindlin's ouster, they might also be understood to have concluded that the stop and frisk cases should never have been before her in the first place.

However, as Azmy pointed out, the panel had subsequently purported to clarify that it had not intended to make any finding that the cases should not have been assigned to Judge Scheindlin or that she had otherwise engaged in any actual misconduct, but only had decided that the cases prospectively should be reassigned to another district judge in the interests of justice and to ensure the appearance of impartiality. As such, he argued, the possibility described by Judge Cabranes did not present any meaningful concern. As both Professor Dorf and I have separately explored, whether that is in fact the correct away to understand the panel's decision-making last year, which oscillated between multiple rationales in a somewhat confusing manner, is not at all obvious. But Azmy's response did provide an entirely faithful and accurate account of what the panel itself professed to be doing. Were the panel now to embrace yet another account of what it purported to be doing by removing Judge Scheindlin, it would add another layer of confusion to the panel's already confused decision-making in this set of cases.

What seemed much more clear based on that exchange is that any effort by the panel to vacate or otherwise undermine Judge Scheindlin’s liability opinion could end up being rather messy—not only by undermining the substantive basis for the settlement itself, as Azmy emphasized, but also by dredging up much of the drama that the panel unleashed with its decision to oust Judge Scheindlin in the first place. While mostly relegated to the background during Wednesday’s argument itself, that decision continues to cast a shadow over the Second Circuit’s involvement in the stop and frisk litigation as an institution. Indeed, because of the fallout from that decision, counsel for both sets of plaintiffs filed petitions for rehearing en banc last November that not only sought reversal of the panel’s decision, but also, quite remarkably, urged reassignment of the appeal to a different panel altogether. Those petitions—along with motions questioning whether the panel had appellate jurisdiction in the first place—are still pending, and only last month counsel for the plaintiffs directly signaled to the court that they were prepared to renew their petitions for en banc review.

The settlement gives both the panel and the Second Circuit more generally a straightforward potential exit strategy from this unfortunate episode, one that would leave no reason for the plaintiffs to renew those requests for en banc review and would avoid reopening the wounds inflicted a year ago. In this context, while it garnered no headlines and may have made many eyes in the packed galleries glaze over, Judge Cabranes was entirely justified in raising and dwelling upon the details concerning the nature of the decree the parties were seeking. The issue undoubtedly was mindnumbing for many in attendance, but whether the panel’s disposition of these motions in fact does enable everyone to move on, and to avoid having to endure “Stop and Frisk Appeal, The Threequel,” may depend significantly upon this seemingly “clerical” but in fact highly substantive detail to a greater extent than many observers might realize.

Wednesday, October 15, 2014

Witness Incompetence

by Sherry F. Colb

In my Verdict column for this week, I discuss Ohio v. Clark, a case that the U.S. Supreme Court recently agreed to review during the coming term.  Clark raises questions about when the introduction of out-of-court statements offered for their truth (i.e., hearsay) against a criminal defendant triggers the Sixth Amendment right of confrontation and thus requires exclusion in the absence of an opportunity for the defense to cross-examine the maker of the out-of-court statements.

In this case, in response to questions by his teachers (about injuries on his face), a child identified his mother's boyfriend as the perpetrator.  At trial, the judge deemed the (three-year-old) child incompetent to testify but permitted his teacher to testify about his statements to her and another teacher identifying the defendant as the cause of his injuries.  What makes his statements potentially "testimonial" (i.e., the equivalent of in-court testimony and thus subject to the defendant's right of cross-examination) is the fact that his teachers are mandatory reporters of child abuse under the law and therefore might have been acting as agents of law enforcement in questioning the child about his injuries.

In my column, I discuss in greater detail the relationship between the introduction of hearsay evidence, on one hand, and the right of a criminal defendant to be confronted by the witnesses against him, on the other.  I talk about the old test of whether hearsay triggered a right to cross-examination -- the reliability test of Ohio v. Roberts -- and the newer test of Crawford v. Washington that asks whether a particular item of hearsay is or is not "testimonial."

In this post, I want to focus on why the child in Clark was not available to the defendant for cross-examination:  the judge's determination that he was incompetent to testify and therefore could not take the stand to directly provide his account of what happened.  It was for this reason that the jury was left to rely on the testimony of third parties who took the stand and repeated the statements that the child made to them.

Witness competency, as a general matter, refers to a witness's ability to perform the tasks of a witness.  If offered as an expert, then the witness must demonstrate the requisite expertise that will help the jury understand evidence that it might otherwise have a difficult time understanding.  If offered as a lay witness, on the other hand, the witness ordinarily must have direct perceptual knowledge of some matter that is of consequence to the case.  If the litigation concerns a car accident, for instance, a competent witness will have either seen the accident with her own eyes or will have directly observed some other feature of relevance to the case (e.g., the defendant's drinking alcohol or speeding beforehand or the extent of the plaintiffs' injuries).

In the case of a young child, however, other requirements for witness competency become salient, namely, the ability to accurately perceive what is happening around one, the capacity to recall what happened in the past, and an understanding of the difference between the truth and a lie, along with an appreciation of the obligation to tell the truth.  In ordinary adult witnesses, these abilities are all clear or assumed, but young children are often as yet unable to accomplish these rudimentary cognitive tasks that are necessary to being able to testify helpfully for the jury.

When a judge finds that a particular child is incompetent to testify, then, the judge has made a determination that even though the child may be capable of communicating, he does not meet some threshold of ability to take in reality, to remember it from one point to the next, or to convey it truthfully, with an understanding of the meaning and importance of telling the truth while under oath.

Given this sort of determination by the judge, it may seem odd that third parties would then be allowed to repeat the out-of-court statements of the very person who has been deemed insufficiently capable of observing, remembering, and communicating to be able to come before the jury and testify himself.  If he is not sufficiently worthy of being heard to testify, then how can his earlier out-of-court statements be considered worthwhile?  This question, in fact, seems apt regardless of how we resolve the constitutional issue of whether the out-of-court statements trigger the Sixth Amendment right to cross-examination.

One response might be to say that it is precisely the child's incompetence to testify that makes it acceptable to have third parties repeat his statements in court without there being an opportunity to cross-examine the speaker who made those statements.  Since he cannot testify, the child is by definition, incapable of testimony, and his earlier assertions therefore cannot possibly be "testimonial" for purposes of the Sixth Amendment.

This response may be correct, for Sixth Amendment purposes, but it still does two things:  it begs the question why a testimonially incompetent witness is being allowed to offer his (presumptively) incompetent observations and memories through a third party at the trial, when he may not do so directly from the stand; and it suggests that the Sixth Amendment right of confrontation may be an inadequate protection, if it only provides a right to cross-examine statements that are sufficiently reliable and useful to qualify the speaker as a witness but leaves unexamined the words of a person who has been disqualified from taking the witness stand.  In other words, if the Court were to deem the out-of-court statements of a disqualified witness ipso facto nontestimonial and therefore admissible in virtue of the speaker's incompetence, then this in itself suggests that Confrontation Clause doctrine leaves something to be desired.

I raise these issues here in a preliminary fashion and do not offer any definitive answers.  I would suggest, however, one potential response to the quandary. I would point out that the out-of-court statements of incompetent people (whether of children, impaired elderly, or extremely disabled adults) can provide important information about the abuse and mistreatment of vulnerable populations.  This is why if a child -- even a very young child -- tells the police that his parents are hurting him, then the police will and ought to look into that claim rather than ignore it on account of the child's relative incompetence.

By the same token, and despite the flawed nature of communication by very young children and mentally impaired adults, it is important for fact-finders in abuse cases to -- in some way -- hear from the victims of the alleged abuse. Introducing the words of such victims through third parties, who can provide context, offer any proper skepticism, and present potential corroboration for what they heard from the victim, can be quite useful.

Stated differently, a presumptively incompetent witness -- one whose "under oath" testimony would not be remotely comparable to the sworn testimony of an adult -- should not be completely silenced in a proceeding to determine what happened to him.  His statements to his teachers may be something less than "testimonial" -- in part because he is so young and incapable of meeting the perceptual, memory, and sincerity burdens of a testifying witness -- but they are worth more than nothing.  In a case such as this, jurors will surely take into account the fact that the victim is not testifying and may count that fact against his credibility. But because the victim did speak to a teacher, and the teacher had the opportunity to assess the child's capacities at the time of the statement -- it seems just that the jury, in deciding whether or not the child was in fact victimized by the defendant, should have this bit of evidence, along with other evidence of the misconduct, at its disposal.

Tuesday, October 14, 2014

In Which I Appeal to Authority to Support My Argument About Economic Regulation

-- Posted by Neil H. Buchanan

My Verdict column and Dorf on Law post last Thursday extended my ongoing discussion of the misuse (by economists, policy types, and politicians) of the concept of "efficiency."  In particular, I discussed how it is possible, notwithstanding the free market mantras emanating from both U.S. political parties, that regulation by the government can be efficient.

One way to restate my point is that, even if one sets aside my usual arguments about how to define efficiency in a coherent sense, there must be something that would qualify as "efficient regulation," because the economy is -- and must be, at all times -- regulated by the government.  What people call "unregulated" actually just means, in most cases, "Powerful entities get to do what they want, and the government enforces rules that back them up and that move wealth and power in their direction."  That is regulation, too, but the mouthpieces for those powerful entities like to sell the idea that the government is not involved, and thus that "freedom is enhanced," when the government does their bidding.  Liberty!

When I wrote those pieces last week, I did not know that this year's "Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel" would be awarded yesterday to a French economist named Jean Tirole.  By pure happenstance, his work is relevant to the argument that I was making last week.

Long-time readers of this blog know that I insist (see, e.g., here) on not following others' persistent error in calling that award "the Economics Nobel," in part because doing so tends to make it seem that the award recipient has just been deemed An Economic Expert Par Excellence For As Long As He (or, only once, She) Shall Live.  Actually, for many of them, the quasi-Nobel aura extends beyond the grave (although Milton Friedman's ghost has taken a bit of a beating recently from his former conservative admirers, who now apparently think that his willingness to use monetary policy amounts to closet Marxism).

The obvious problem is that it is all too easy for people to get excited when the annual award goes to an ideological compatriot, and to dismiss the award as merely political theater when a bad guy wins.  Last year, the committee pulled one of its occasional "make everyone happy" multiple-recipient announcements, succeeding only in confusing everyone and making no one especially happy.

With that caveat, I will note here that Tirole's work has always been in that rare category of being respected by his technique-obsessed profession, while also being relevant to real life.  That is no small feat.  And the central goal of Tirole's work is to try to figure out how to regulate large, powerful entities (communications companies, banks, and so on) to maximize the public good.  For the government to choose "not to regulate," in the usual sense of that word, not only allows large entities to harm everyone, but it does not even achieve a narrow economic conception of efficiency.

The Times story describing Tirole's work offers a nice real-world example, explaining how the U.S. does a worse job of regulating cable TV companies than Europe and other countries do, because our government refuses to directly force Time Warner and Comcast to provide access to competitors to use the wires that run into people's houses.  This has the perverse effect of forcing a potential competitor to decide whether to compete by running new lines into new customers' houses (an expensive proposition), or to drop out of the market entirely and try to monopolize the markets in which it already has an advantage (if any).  Guess what happens most of the time?  In Europe, Australia, and New Zealand, by contrast, they follow Tirole's advice, and customers receive better service at lower prices.

So there.  A Nobel Prize Winner agrees with me.  Are you impressed?

Monday, October 13, 2014

The Relative Importance of Inter-Circuit Conflict and State-Circuit Conflict as Cert Criteria

By Michael Dorf

As the Supreme Court waits for a Circuit split that may never arrive before granting certiorari in a same-sex marriage case, it is worth noting that the Court's role in ensuring the uniformity of federal law occasionally manifests itself in a different way: sometimes the Court resolves conflicts between a state court and the courts of the circuit that encompass that state. Supreme Court Rule 10(a) expressly recognizes this sort of interest, listing state-circuit conflict just after inter-circuit conflict as a "consideration" in the decision whether to grant cert. (The Rule lists "considerations" rather than "criteria" because, as the Rule itself states, the factors are mere guidelines; granting or denying certiorari remains a matter of unreviewable discretion.)

The main focus of Rule 10 appears to be national uniformity as such. Thus, 10(a) lists conflict between a federal appeals court and "a state court of last resort," including a state court of last resort in a state that does not fall within the circuit in question. And Rule 10(b) lists inter-state conflict as another certiorari consideration.

The focus on uniformity as such makes some sense. At least since Justice Joseph Story's 1816 opinion for the Court in Martin v. Hunter's Lessee, maintaining the uniformity of federal law has been understood as a key function of the Court. Famously, Justice Oliver Wendell Holmes, Jr. opined that this function was more important than reviewing acts of Congress for constitutionality. He stated: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

Uniformity as such is important, especially in cases with commercial implications. Much of the impetus for the 1787 Constitutional Convention, after all, was the concern that the central government needed authority to establish uniform rules governing commerce, and this remains a concern today. Congress often legislates precisely for the purpose of easing the burden on commercial actors who would otherwise be subject to fifty regulatory regimes. When conflicts arise concerning the meaning of federal law, failure to resolve those conflicts undermines the purpose of the federal law. The Constitution and federal law more generally thus serve partly as guarantors that the nation will be a kind of free trade zone.

But many instances of conflicting interpretations of federal law do not present a substantial risk of inconsistent obligations or costly measures at state borders. Just as we are accustomed to states themselves having different laws, so a federal system can tolerate some measure of disuniformity with regard to the meaning of federal law from one state to another (or one circuit to another), so long as the effects are largely felt on a state-by-state (or circuit-by-circuit) basis.

To be sure, disuniformity in the interpretation of basic rights (like the right to free speech, the right to marry, or the right to equal protection) raises troubling moral questions. A set of national rights ostensibly sets forth a standard for the bare minimum that is owed to citizens. Disuniformity with respect to rights will thus frequently mean that one or more jurisdictions are falling below that minimum.

But even that concern, while important, may be less important than the need to prevent the imposition of directly conflicting legal obligations. Consider that under the jurisprudence of the European Court of Human Rights (ECHR), states may be given a "margin of appreciation" in recognition of differing cultural, historical, or other differences that obtain. The basic idea is this: Rights set an absolute floor below which no state may fall but not every state must comply immediately with all of the other implications of rights insofar as they entail obligations above that floor.

There is currently no version of the margin-of-appreciation doctrine in U.S. constitutional law, but in the days before more-or-less full incorporation of the Bill of Rights against the states, there was. At that time, principles of federalism were thought to give the states greater leeway in complying with the obligations of the Fourteenth Amendment's Due Process Clause than was given to the federal government under the enumerated rights of the Bill of Rights. The pre-incorporation doctrine was justified in terms that were broadly parallel to the ECHR's margin-of-appreciation doctrine.

Accordingly, it is at least possible to conceive of a regime in which state-by-state or circuit-by-circuit disuniformity in the interpretation of federal constitutional rights persists for some time, without doing violence to the very idea of a national constitution. By contrast, conflicting interpretations by a state court of last resort and the federal appeals court for the circuit in which that state is located present an urgent need for resolution by the SCOTUS.

Consider an example. Suppose that the Sixth Circuit has ruled that some new form of investigative activity--let's call it "passive brain wave monitoring" or PBWM--amounts to a "search" within the meaning of the Fourth Amendment, thus requiring a warrant based on probable cause, but that the Ohio Supreme Court has held that PBWM is not a search within the meaning of the Fourth Amendment. (As I explained in my last post, a federal appeals court ruling does not bind state courts as a matter of precedent.) Now suppose that you are the Chief of Police of Cleveland. Do you invest in expensive PBWM technology? If your department already owns PBW monitors, do you instruct your officers that they may deploy the devices without seeking warrants? If they do, the evidence obtained will be admissible in the Ohio state courts, but could also subject the city to civil liability in federal court. (I assume that individual officers would have qualified immunity because the conflict between the Sixth Circuit and the Ohio Supreme Court means that the unconstitutionality of warrantless PBWM is not "clearly established." However, municipalities sued for unconstitutional policies do not have qualified immunity, even if the unlawfulness of the policy was not previously clearly established.) Any particular instance of PBWM will be either lawful or unlawful based on whether a state case or a federal case wins the race to judgment. (I omit discussion of some complications introduced by the Younger abstention doctrine, but jurisdiction afficianados can address them as a fun exercise for themselves!) The conflict between the Sixth Circuit and the Ohio Supreme Court over this question of federal constitutional law puts some officials in Ohio in a very difficult position in which their actions are simultaneously lawful and unlawful, depending on which system of courts they end up in. Thus, the conflict cries out for Supreme Court resolution.

Can we imagine circumstances in which same-sex marriage is simultaneously legal and illegal in a particular state? Particular couples who obtain federal court orders entitling them to marry would generally be able to rely on those orders to establish their entitlement to marry in any subsequent litigation in state court, because, (as I also explained in my last post) although lower federal court judgments do not bind state courts as a matter of precedent, they do have preclusive effect with respect to the same parties. However, because the SSM litigation has mostly not proceeded via class actions, in most states, the same-sex couples who marry will not do so pursuant to a federal court order in a case to which they were parties.

Consider a state in which a federal appeals court has ruled that a small number of individual couples has a federal constitutional right to marry, and that in response to that ruling, the governor or state attorney general instructs county clerks to begin issuing marriage licenses to same-sex couples. Now suppose that at some later point a member of one of those couples is prosecuted for some crime and the state seeks to compel his husband to testify against him. The husband invokes the spousal privilege but the state courts reject it based on the view that two men cannot be married under state law, rejecting the federal appeals court's determination that there is a constitutional right to same-sex marriage. The ruling is affirmed by the highest court of the state. Presto! We have a conflict between a state court of last resort and a federal appeals court encompassing that state.

Will it happen? Perhaps not. As I noted in my last post, with even the South Carolina Supreme Court charting a moderate course on same-sex marriage, perhaps there will never be another ruling by a federal appeals court or a state high court rejecting a constitutional right to same-sex marriage. But even in that event, the broader point stands: State-federal conflicts can be more urgent than circuit splits.

Saturday, October 11, 2014

No Massive Resistance To Same-Sex Marriage From South Carolina

By Michael Dorf

Although elected officials in some states that fall within the circuits that have invalidated same-sex marriage (SSM) bans have acquiesced to the inevitable by implementing SSM in their states, others appear to want to go down swinging. I have no sympathy for the substance of their (lost) cause, but here I want to suggest that their legal position has more to recommend it procedurally than one might at first think. I'll focus on South Carolina, where there is a potential conflict brewing between the state and federal courts. As I'll explain, the South Carolina Supreme Court may be playing a subtle game.

But first, a seemingly unrelated story. In 2007, I received a phone call from a NY Times reporter who was interested in a case from New Rochelle. A state court judge had thrown out the charges against a homeless man who was arrested for begging in violation of a state law that had been declared unconstitutional over a decade earlier, yet the state planned to appeal. Wasn't it obvious, the reporter asked, that the state cannot enforce an unconstitutional law? The answer, I told her, was no.

The earlier case involved different parties (New York City rather than New Rochelle, and a class of NYC plaintiffs that did not include the New Rochelle man). Thus, the earlier case did not bind the New Rochelle court as a matter of preclusion (which is party-specific). And the prior case was a ruling by the U.S. Court of Appeals for the Second Circuit, but state courts are not bound as a matter of precedent by rulings of federal trial or appeals courts, even if the state is in the same circuit as the appeals court.

The conversation with the reporter led me to write a NY Times op-ed, which in turn led to a successful multi-year collaboration with the lawyer who was representing the man, as I described here. The important point for now is the one that surprised the Times reporter: decisions of the lower federal courts do not bind state courts, even if they hold a law unconstitutional.

Accordingly, the South Carolina Supreme Court (SCSC) was correct in its ruling on Thursday that the Fourth Circuit decision in Bostic v. Schaefer--which invalidated the Virginia SSM ban--did not bind it. To be sure, the SCSC's citation of Baker v. Nelson (the 1972 SCOTUS per curiam dismissing jurisdiction for want of a substantial federal question in A Minnesota case) displayed at least a bit of churlishness. Public opinion has been rapidly moving in favor of SSM everywhere, but South Carolina is one of the states on the trailing edge of that trend. Thus, it's quite possible that in the absence of the federal court rulings, the South Carolina Supreme Court would still oppose a constitutional right to SSM.

Nonetheless, I don't read last week's SCSC order as hostile to SSM. It merely instructs state probate judges (who have responsibility for issuing marriages in the state) to hold off on granting marriage licenses to same-sex couples pending the final resolution of pending federal district court litigation. That could come quickly, with an equally quick affirmance by the 4th Circuit. To be sure, at that point the SC Attorney General could try run the clock by waiting the full 90 days to file a cert petition with the Supreme Court, but in the meantime, the appeals court would likely instruct the district court to enter orders facilitating marriages immediately--as the Ninth Circuit did last week. That in turn could lead the SC AG to seek an emergency stay from the Circuit Justice--CJ Roberts for the 4th. We might expect the Chief Justice to issue a temporary stay pending consideration by the full Court, as Justice Kennedy did with respect to Idaho's stay application on Wednesday. But if so, there's every reason to think that the full Court would then reject the application, as it did with the Idaho application after a couple of days.

It's tempting to ask why the SCSC even bothered to delay SSMs in South Carolina for the days or weeks it might take for the federal court litigation to conclude. After all, SC officials, including Justices of the Supreme Court, could have simply acquiesced and ordered SSMs to commence immediately following the cert denial in the 4th Circuit case. But viewed from the other direction, the SCSC decision does acquiesce to a considerable degree.

Consider that the pending federal district court litigation challenging South Carolina's SSM ban is not a class action. The complaint in the case was filed on behalf of one couple who were married in DC and seek recognition of their SSM in SC. (The foregoing link is to the original complaint. I have looked at the amended complaint, which is not available free online, so far as I could tell, but it doesn't change the parties.) Thus, as a formal matter, the pending litigation will only resolve whether South Carolina must honor the marriage of this one particular same-sex couple. Even after the district court says that it must, and even after the 4th Circuit affirms that answer, and even after the SCOTUS denies cert, the South Carolina courts will still be free to treat every other same-sex couple in South Carolina as not married, without violating either principles of preclusion (because those other couples were not parties to the original lawsuit and there is no non-mutual issue preclusion against the government), or precedent (because a cert denial is not a ruling on the merits, so the only rulings on the merits will be by lower federal courts, which do not bind state courts as precedents).

In its brief opinion on Thursday, the SCSC appeared to recognize all of this, stating that "although the parties in this matter and the federal case are not identical, the principle underlying [one] of the South Carolina Rules of Civil Procedure that duplicative litigation should be avoided applies to this case." By treating federal court litigation involving different parties as "duplicative," the SCSC appeared to indicate that once the lower federal courts hold the state's SSM ban invalid, the SCSC will treat that as binding in all cases--even though, as a technical legal matter, the SCSC and state officials could hold out until each South Carolina same-sex couple seeking to marry or seeking recognition for an out-of-state SSM brings their own successful lawsuit, or a statewide class action is certified and declared victorious.

Although some South Carolina politicians (e.g., this one) echo the "impeach Earl Warren" billboards that characterized the Southern campaign of "massive resistance" to Brown v. Board, the SCSC has staked out a decidedly moderate course. By waiting for a federal district court ruling, the SCSC (whose Justices are appointed by the state legislature to renewable 10-year terms) gives the appearance of resistance to SSM, but by preparing to acquiesce before the rules of precedent and preclusion would technically require acquiescence, the SCSC in fact shows that its resistance is a mere token.

Friday, October 10, 2014

Good News Cannot Be Good News When There Is Panic To Be Sown (Deficit Edition)

-- Posted by Neil H. Buchanan

In my newest Verdict column, which was published yesterday (and which I described and extended here on Dorf on Law), I begin by arguing that many Democrats agree with the Republicans' positions on many issues, to the country's (and the Democrats') detriment.  Before proceeding to the central point of the article -- the bipartisan misunderstanding of concepts like efficiency and regulation -- I briefly mention budget deficit hysteria as an obvious point of agreement among many Democrats and all Republicans.  (Do not forget that the infamous Bowles-Simpson duo is nominally bipartisan, and the Obama Administration created that misbegotten commission at the insistence of "centrist" former Democratic Senator Byron Dorgan.)

As part of that brief discussion about deficit mania, I wrote that the bipartisan commitment to annual balanced budgets "is a bit awkward, because it is simply inconsistent with another widely held notion, that the accumulated national debt must be paid down to zero."  I thought that I was making a rather obvious point, which is that one has to run annual surpluses in order to pay down debt.  In fact, if one were foolishly to commit the U.S. to reducing the current $12.8 trillion U.S. national debt to zero, it would require annual surpluses of $500 billion for over twenty-five years, even without taking into account the interest that will accumulate during that time.  As I argued in a symposium piece a few years ago, Why We Should Never Pay Down the National Debt, that would be both bad policy and politically unimaginable.

That does not stop the silliness, however.  I receive emails from a number of the "deficit scold" organizations, and it just so happens that this week saw the release of the Congressional Budget Office's new report showing that the deficit this year is running at less than 3% of GDP, which people who actually understand deficits know to be a very low number.  In short, even if one were to be more concerned about deficits than theory warrants, this is good news.  Yet one of the scold groups sent an email with the headline: "Deficit Falls to $486 billion, but Debt Continues to Rise."  Well, yes. that's how it works.  When there is a deficit, that adds to the debt.  Of course, that does not tell us anything useful, but it is certainly impossible to deny.  (I am not naming the specific scold group here for the simple reason that it does not matter which group happens to have written this particular email.  They are all ultimately funded by the same person, Pete Peterson, and their purpose is to create an "anti-deficit ecosystem" that feeds upon itself and takes over healthy habitats.)

Most of the group's email falls into the usual faux-caution meme, with claims that one year's deficit number should not be read out of context.  True.  However, their particular bullet point in support of the headline reads thus: "Even as deficits have fallen, debt has continued to rise, more than doubling as a percent of GDP since 2007 to record levels not seen other than during a brief period around World War II."  Of course, an annual deficit of only 2.8% of GDP will lead to a decrease in the ratio of debt to GDP, moving it down, not up.  Moreover, saying that "[e]ven has deficits have fallen, debt has continued to rise," is wholly misleading, because the increase in debt-to-GDP starting in 2007 happened when (and because) deficits rose during the Great Recession.  Suggesting that "falling deficits and rising debt-to-GDP" are somehow tied together is simply dishonest.

This willingness to count on readers' innumeracy is even more obvious in the email's previous bullet point: "Simply citing the 66 percent fall in deficits over the past five years without context is misleading, since it follows an almost 800 percent increase that brought deficits to record high levels." To use some simple numbers, did you know that if a deficit goes from $2 to $18, and then back to $2, it will have dropped only by 89%, after it increased by a whopping 800%?  So we're obviously worse off, right?  And in the meantime, GDP will have risen, so citing the deficit out of context is obviously designed to stoke fear.

It is all unbelievably crass, with another bullet point telling us this: "Both deficits and debt are projected to rise over the next decade and beyond, with trillion-dollar deficits returning by 2025 and debt exceeding the size of the economy before 2040, and as soon as 2030."  (The bold and italics in all quotes are in the original, of course.)  Of course, by the time that the deficit is a trillion dollars again, the GDP is projected to rise, too, such that trillion-dollar-deficits will be easily manageable.  And the possible (but not guaranteed) rise of debt to more than 100% of GDP is, as always, driven not by the dreaded "out-of-control spending on entitlements" but specifically by rising costs for medical care.  Moreover, they never admit that the supposed rise in debt-to-GDP is mild, reversible, and has not been shown to inflict any harm on the economy, especially compared to the costs of reducing deficits.  (The supposed 90% doom threshold was debunked long ago.)

Jonathan Chait's take on all of this in New York magazine is a must-read.  And Paul Krugman's comment on his blog, pointing out that the political types advising Obama were certain that he would be rewarded for being "the grownup," reminds me of a point that I made a few years ago: Would you rather be running for office as part of the "in party" with a debt of $13 trillion and a weak economy, or a debt of, say, $15 trillion and a strong economy?  Obama managed to win in 2012 despite taking the wrong side of that bet.  He might lose the Senate because of his mistake.  Yes, I am being reductionist.  But all of the evidence shows that strong economies, especially strong job markets, are good for incumbents.  And despite the scolds' best efforts, jobs beat scary debt numbers (especially manipulated, bullsh*t debt numbers) every time.