Schism, Not Consensus, On The Right Wing Of The Supreme Court
Today's op-ed by former Acting Solicitor General Neal Katyal in the New York Times peddles a lovely fairy tale. Titled "The Supreme Court's Powerful New Consensus", the think piece asserts that Chief Justice Roberts has the "remarkable achievement" of fostering unanimous decisions in two-thirds of the Supreme Court cases this year. According to Katyal [a college classmate], this degree of unanimity "is important because it signals that the justices can rise above their differences and interpret the law without partisanship." Katyal states that "the court was unanimous this term in cases that posed big central questions, like whether the government could search your cellphone without a warrant, whether software could be patented, whether the rules for class-action securities lawsuits should change, and many others." Katyal commends the Chief Justice for "the modesty and cultivated collegiality of the nine members of the Supreme Court this year." Prof. Jonathan Adler, in the Washington Post's Volokh Conspiracy blog, endorses Katyal's conclusion that Chief Justice Roberts has achieved a "remarkable degree of consensus."
There is one big problem with Katyal & Adler's kumbayah thesis: it is demonstrably false. The 9-0 Court votes on who won the big cases cannot hide the fact that the Court consistently issued splintered opinions on why the winning side prevailed. In case after case, Justices Antonin Scalia and Clarence Thomas wrote vituperative opinions attacking the reasoning that the majority used to reach its result as perverting the law. They made it clear that they were voting for the same bottom-line outcome, but livid at the majority's opinions.
Yesterday, in his concurrence in the big abortion protest decision, Justice Scalia decried "the assembling of an apparent but specious unanimity." He wrote that under the majority decision, "the First Amendment is a dead letter." Moreover, in the Recess Appointments case also announced yesterday, Justice Scalia took the rare step of reading his opinion from the bench to demonstrate his disgust with the majority's opinion. These protests should not have escaped Katyal & Adler's notice.
In most Supreme Court cases, the reasoning of the Court is vastly more important than the simple question of which side wins. Of course, there are some cases (like the Bush v. Gore decision determining the outcome of the 2000 Presidential election) where the victor is much more important than the rationale. But the reason the Supreme Court issues opinions (and does not just announce results) is that those opinions disclose the governing jurisprudence that set the meaning of the Constitution and the law for the lower courts and the public.
Follow below the fold for a discussion of the schisms in three of the major cases decided 9-0 this term: McCullen (abortion protest buffer zones), Canning (President's power to make recess appointments) and Halliburton (securities fraud).
Scalia Unleashed His Harshest Invective To Attack The McCullen Abortion Decision
In McCullen, the Supreme Court determined the constitutionality of a Massachusetts law setting a 35 foot buffer zone around the entrance to any abortion provider that protestors could not enter to provide "street counseling" to dissuade a patient. The court held 9-0 that the law was unconstitutional. But the Court split 5-4 on why the law was unconstitutional. Chief Justice Roberts, writing for himself and the Court's four liberals (Breyer, Ginsberg, Kagan & Sotomayor), held the law was not aimed at surpressing anti-abortion speech, but failed because it was not sufficiently "narrowly tailored" to the permissible goal of protecting patient access to abortion providers.
According to Justice Scalia, the majority opinion was an open attack on the First Amendment rights of anti-abortion activists. There was nothing cordial about the opening to his attack on the majority decision:
12-1168 McCullen v. Coakley (06/26/2014)
Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.
Scalia Scoffs At The Majority's Holding That The Law Did Not Target Anti-Abortion Speech
The first big split between the Roberts and Scalia was on the question of whether the Massachusetts law specifically targeted anti-abortion speech. The majority held that the law was "content neutral" and designed only for the appropriate purpose of protecting a patient's right to safely enter an abortion clinic. The majority held that the fact that the law allowed clinic employees and unpaid volunteer "escorts" to enter the 35 foot buffer zone was not impermissible viewpoint-based discrimination, because employees might be needed to perform tasks such as "shoveling a snowy side walk." Because the majority found there was no impermissible viewpoint-based discrimination, the law would not be subject to the harshest review - "strict scrutiny" - but rather treated as a presumptively permissible regulation of the "time, place and manner" of anti-abortion protestors' speech.
Justice Scalia aimed both rhetorical barrels at Chief Justice Roberts on this issue. He accuses the majority of using a double standard to allow restrictions on abortion protestors that would not be allowed on civil rights marchers:
12-1168 McCullen v. Coakley (06/26/2014)
It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based. Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Conven tion? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.
Scalia wrote that the majority could not be so naive as to believe that the "fanciful defense" that the law was not designed to target anti-abortion speech. "Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion."
Scalia further took aim at the majority for accepting the exemption in the law for clinic employees and volunteer "escorts." Scalia wrote that it was "not a shadow of doubt" that this exemption allowed pro-abortion speech in the buffer zone where anti-abortion protestors could not enter:
There is not a shadow of a doubt that the assigned or foreseeable conduct of a clinic employee or agent can include both speaking in favor of abortion rights and countering the speech of people like petitioners. See post, at 1–2 (ALITO, J., concurring in judgment). Indeed, as the majority acknowledges, the trial record includes testimony that escorts at the Boston clinic “expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways,” including by calling them “ ‘crazy.’ ” Ante, at 7, 16 (citing App. 165, 168–169, 177–178, 189–190). What a surprise! The Web site for the Planned Parenthood League of Massachusetts (which operates the three abortion facilities where petitioners attempt to counsel women), urges readers to “Become a Clinic Escort Volunteer” in order to “provide a safe space for patients by escorting them through protestors to the health center.”
Scalia Accused The Majority Of Bad Faith In Purposefully Creating A Test Easily Met In Other Restrictions On Abortion Protest
Justice Scalia did not stop at accusing Chief Justice Roberts and the liberal majority of getting the law wrong, he accused them of bad faith. According to Scalia, the majority's purpose was to "preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in Part IV of the majority’s opinion."
According to Scalia, it was absurd to consider the Massachusetts law as a failed attempt to preserve public safety that was merely "poorly tailored." In his words:
"That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim."
To this reader, this language does not display "remarkable consensus."
Scalia Refused To Address "Narrow Tailoring" Because He Wanted To Make It Clear This Was Not A Unanimous Opinion
Justice Scalia is a master of rhetoric. He understood that the popular press would want to embrace the narrative that the wise heads at the Supreme Court had reached a unanimous opinion on the First Amendment rights of anti-abortion protestors. He explicitly refused to address the question of "narrow tailoring" in order to avoid the creation of the appearance of a "specious unanimity."
Scalia & The Conservatives Attacked The "Recess Appointments" Decision As "Undermining" The Constitution
In the Canning case, the Supreme Court had to decide whether President Obama had validly appointed members of the National Labor Relations Board without Senate confirmation during a "recess" of the Senate. Ordinarily, the Constitution requires that the President obtain Senate confirmation for cabinet secretaries, ambassadors and other high-level appointments. But the Constitution gives the President the power, without Senate confirmation, “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The 9-0 decision was that President Obama overstepped his authority. There were two diametrically opposed rationales for those 9 votes. Five justices (the four liberals plus Justice Kennedy) held that there was no "Recess", so President Obama did not have the power to make "recess" appointments. Justice Scalia (writing for himself, Thomas, Alito and Roberts) thundered that the majority's rationale constituted an assault on the separation of powers doctrine of the Constitution. According to the conservative concurrence, the majority opinion created "a weapon to be wielded by future Presidents against future Senates."
Can A President Make A Recess Appointment To A Pre-Existing Vacancy?
The majority and the conservatives divided on the question of whether the president's power to make a recess appointment covered a vacancy that existed prior to the start of the Recess. Here, it was undisputed that the vacancies on the NLRB existed for months or years while the Senate was in session. According to the majority, the president's recess appointment power "to fill up all Vacancies that may happen during the Recess" covers all vacancies that exist during a "recess", not just vacancies that first occur during the recess. The majority held that the language of the Constitution was "ambiguous" and that history resolved that ambiguity because presidents had used the recess appointments to fill pre-existing vacancies since the beginning of the Republic.
Justice Scalia was unflinching in his attack on the majority's reading of the history of the Recess Appointment clause. He wrote that he could not conceive of any "sane constitutional theory" to support the majority's holding:
In sum: Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evi dence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehe mently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compen sated). I can conceive of no sane constitutional theory under which this evidence of “historical practice”—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch.
Ordinarily, attacks on your opponents' sanity are not hallmarks of a civil and well-mannered dispute.
What Does "Recess" Mean?
The second big fight between the liberal majority and the conservatives was over the meaning of the term "the Recess." Here are the important terms. A "term" of Congress is the two year period from the swearing in of the members of the House of Representatives until the expiration of those seats two years later. A "session" of Congress is the period of time when Congress is assembled. An inter-Session break between the two formal Sessions of a Congress. An intra-Session break is a break during the Session, such as a weekend or the summer break.
President Obama had argued that any break in the Senate's session of three days or more constituted a "Recess" that triggered his power to make recess appointments. The Senate had argued that the term "the Recess" only applied to inter-session breaks in the Congress, and not to intra-sessions adjournments during a Session. The Senate, fearing that President Obama would attempt to make recess appointments, had determined on December 17, 2011 to have a series of adjournments for the next month, punctuated by pro forma sessions every Tuesday and Friday where no business would be conducted. President Obama had argued that the pro forma sessions could be ignored for purpose of determining whether the Senate was in recess.
The majority held that the term "the Recess" could mean either an intra-Session or inter-Sesssion break in Congress. "In our view, the phrase 'the recess' includes an intra session recess of substantial length." The majority held that a break of three days or fewer could not constitute "the recess", and that a break of less than ten days "presumptively" would not be a "recess." But the majority held that there was no Recess here, because the Senate held pro forma sessions every three days for the entire period.
Scalia unleashed his acid pen on the majority's "judicial adventurism". He wrote that the presumption against recess appointments being allowed during a recess of less than 10 days was absurd and unworkable:
12-1281 NLRB v. Noel Canning (06/26/2014)
And what about breaks longer than three days? The majority says that a break of four to nine days is “pre sumptively too short” but that the presumption may be rebutted in an “unusual circumstance,” such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response.” Ante, at 21. The majority must hope that the in terrorem effect of its “presumptively too short” pronouncement will deter future Presidents from making any recess appointments during 4-to-9-day breaks and thus save us from the absurd spectacle of unelected judges evaluating (after an evidentiary hear ing?) whether an alleged “catastrophe” was sufficiently “urgent” to trigger the recess-appointment power. The majority also says that “political opposition in the Senate would not qualify as an unusual circumstance.” Ibid. So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being; the President’s power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President’s perceived need for the officer’s assistance.
Scalia's concurrence ends with a stirring call to arms:
12-1281 NLRB v. Noel Canning (06/26/2014)
The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess appointment power and the substitution of a novel frame work invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally.
. . .
12-1281 NLRB v. Noel Canning (06/26/2014)
We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of execu tive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.
If you read this as a "remarkable degree of consensus", you have better vision that me.
The Halliburton Securities Fraud Decision Was Even More Splintered
In Halliburton, the Supreme Court was called upon to decide whether to overrule twenty-five years of practice in the federal securities fraud class actions. Since the Supreme Court decided a case called Basic v. Levinson in 1988, the federal courts have allowed plaintiffs to prevail in securities fraud cases without proving that they actually relied upon (or even heard) the allegedly fraudulent statement, because proving actual reliance would make it too hard for plaintiffs to bring a class action against securities fraud. The theory was that every plaintiff should be presumed to have relied upon the fraudulent statement, because securities fraud automatically gets baked into the price of publicly traded securities. In ordinary fraud cases, the fundamental rule is that the plaintiff must prove that she was (1) aware of and (2) relied upon the allegedly fraudulent statement in taking some action.
The "fraud on the market" presumption of reliance is a necessary pre-condition to class action treatment of federal securities fraud cases. Without that presumption, each of individual plaintiff (numbering in the thousands or millions) would have to show up in court to prove that they actually were aware of the fraudulent statement at the time of their investment decision. No court could, or would, manage such an unwieldy case.
The Wall Street defense bar, and its conservative allies, have decried the "fraud on the market" theory for the last twenty-five years. The Halliburton case was designed to be the test case to overturn that rule. In Halliburton, the defense presented evidence that the purportedly fraudulent statement had no impact on the market price of its stock. More importantly, they presented reams of academic studies that designed to show that the intellectual basis for the "fraud on the market" theory had not held up to scrutiny. The Fifth Circuit Court of Appeals had rejected all of Halliburton's arguments calling for the repeal of the presumption of reliance. Moreover, it held that Halliburton was not entitled to submit evidence of "no price impact" during pre-trial proceedings.
Chief Justice Roberts, writing for a 6 justice majority (Breyer, Ginsberg, Kagan, Kennedy & Sotomayor) held that Halliburton's studies had failed to undercut the fraud on the market presumption of reliance. "The academic debates discussed by Halliburton have not refuted the modest premise underlying the presumption of reliance."
Justice Clarence Thomas (joined by Scalia and Alito) took a broadside swipe not only at the "fraud on the market" presumption of reliance, but at the entire idea of federal class-action securities fraud cases:
13-317 Halliburton Co. v. Erica P. John Fund, Inc. (06/23/2014)
Logic, economic realities, and our subsequent jurisprudence have undermined the foundations of the Basic presumption, and stare decisis cannot prop up the façade that remains. Basic should be overruled.
The conclusion of Thomas' opinion demonstrates the deep gulf between the conservatives and the Chief Justice's majority opinion.
13-317 Halliburton Co. v. Erica P. John Fund, Inc. (06/23/2014)
Basic took an implied cause of action and grafted on a policy-driven presumption of reliance based on nascent economic theory and personal intuitions about investment behavior. The result was an unrecognizably broad cause of action ready made for class certification. Time and experience have pointed up the error of that decision, making it all too clear that the Court’s attempt to revise securities law to fit the alleged “new realities of financial markets” should have been left to Congress.
So why is Halliburton a 9-0 decision when the two sides were so fundamentally divided? Because the majority held that the Fifth Circuit was in error in refusing to allow Halliburton to present evidence of "no price impact" during pre-trial proceedings. On that basis, and that basis alone, the six justices in the majority and the three conservatives agreed that the Fifth Circuit decision had to be reversed.